• 
 
 
it* is 
 
 CJorn^ll 30am irlynnl Sibrarg 
 
Cornell University Library 
 KD 1695.C43 1919 
 
 A digest of the law of bills of exchange 
 
 3 1924 022 476 711 
 
 X tU iV 
 
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/cu31924022476711 
 
A DIGEST 
 
 OF THE LAW OF 
 
 BILLS OF EXCHANGE. 
 
 EIGHTH EDITION. 
 
A DIGEST 
 
 OF THE LAW OF 
 
 BILLS OF EXCHANGE, 
 
 PROMISSORY NOTES, CHEQUES, 
 
 AND 
 
 NEGOTIABLE SECURITIES 
 Sir M. D. gHALMERS, K.C.B., C.S.I., 
 
 DEATOHTSMAN OB THE BILLS OF EXCHANGE ACTS, 1882 AND 1906 J 
 
 FOBMEELY PARLIAMENTARY COUNSEL TO THE TEEASUET \ LAW MEMBER 
 
 OF THE VICEBOY'S COUNCIL IN INDIA, ETC. J 
 
 ASSISTED BY 
 
 KENNETH CHALMERS, O.B.E., 
 
 BAEBISTEB-AT-LA-W. 
 
 EIGHTH EDITION. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCEET LANE, 
 
 gCato iPuMislura. 
 
 1M19. 
 
A DIGEST 
 
 OF THE LAW OF 
 
 BILLS OF EXCHANGE, 
 
 PROMISSORY NOTES, CHEQUES, 
 
 AND 
 
 NEGOTIABLE SECURITIES 
 
 ■>* 
 
 Xy by * 
 
 Sir M. D. gHALMERS, K.C.B., C.S.I., 
 
 DRAUGHTSMAN OF THE BILLS OF EXCHANGE ACTS, 1882 AND 1906 ; 
 
 FORMERLY PARLIAMENTARY COUNSEL TO THE TREASURY; LAW MEMBER 
 
 OF THE VICEROY'S COUNCIL IN INDIA, ETC. J 
 
 ASSISTED BY 
 
 KENNETH CHALMERS, O.B.E., 
 
 BARRISTER- AT- LAW. 
 
 EIGHTH EDITION. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCEET LANE, 
 
 |Cato inblishjr*. 
 
 1919. 
 
ft //€¥->-. 
 
.AS 1 
 
 ( v ) 
 
 PKEFACE x^ljB^ 
 
 TO THE EIGHTH EDITION. 
 
 In the present edition, the cases decided on the 
 Bills of Exchange Act since the last edition was 
 published have been added, and the notes have 
 been revised and enlarged. 
 
 Two Acts have been passed which refer to bills 
 of exchange. The Bills of Exchange Act, 1914, 
 makes temporary provision for bills delayed or lost 
 owing to war. The Bills of Exchange (Time of 
 Noting) Act, 1917, extends the time for noting dis- 
 honoured bills, and amends sect. 51 (4) of the prin- 
 cipal Act. 
 
 International Conferences were held at the 
 Hague in 1910 and 1912 with a view to unifying 
 the various systems of bills of exchange law 
 prevailing in the main commercial countries of 
 the world. Thirty-eight nations were represented. 
 The Right Hon. F. Huth Jackson and myself 
 were the British delegates. The result of the 
 Conference was the preparation of a Uniform Law, 
 or, as it was finally called, a Uniform Regula- 
 tion, The scheme of the Regulation was this: — 
 
VI PREFACE TO THE EIGHTH EDITION. 
 
 A Convention was drawn up under which each 
 nation adhering Jo the Convention bound itself to 
 enact the Regulation for its own territory. Certain 
 articles specified in the Convention might be sub- 
 ject to modification to meet local requirements. 
 Thirty-one nations adhered to the Convention. 
 Nearly all these nations have been engaged during 
 the last five years in fighting each other, but now 
 that the War is over perhaps some or all of them 
 will proceed with the promised legislation. Until 
 further information is accessible it does not seem 
 worth while to add to the size of this book by 
 including the Uniform Regulation. The text of it, 
 with an English translation, is included in the 
 Report made by the British delegates to the 
 Foreign Office, which has been published as a 
 Parliamentary Paper, Commercial^ No. 11 of 1913 
 [Cd. 6680]. 
 
 Great Britain and the United States, for reasons 
 fully stated by the delegates, were unable to adhere 
 to the Convention. Throughout .the English speak- 
 ing world a practically uniform system, founded oh 
 the common law, has now been arrived at, and any 
 dislocation of this system would be highly incon- 
 venient. But cordial support was given to the 
 Uniform Regulation which is based on the conti- 
 nental laws, though in many cases it adopts the 
 English rule. As the delegates say in their report 
 
PREFACE TO THE EIGHTH EDITION. vii 
 
 (p. 53): — The result of the adoption of the Uniform 
 Regulation will be that "the present multiplicity 
 of laws will be swept away, and the law relating 
 to bills and notes will be reduced to two great 
 systems, namely, the Anglo-American system which 
 will apply throughout Great Britain and her colo- 
 nies and dependencies and the United States, and 
 the system of the Uniform Regulation which will 
 apply to the rest of the commercial world." No 
 doubt as time goes the two systems will more and 
 more approximate to each other. 
 
 In the United States the Bills of Exchange Act 
 has given fise to an interesting experiment. Great 
 inconvenience was found to result from the different 
 laws enacted by different States with reference to 
 negotiable instruments, and by the varying inter- 
 pretations put on the common law by some fifty 
 State Courts of ultimate resort. The United States 
 Commission on Uniform State Laws, therefore, took 
 the matter in hand, and under their supervision, 
 Mr. Crawford, of the New York bar, drew up a 
 draft Negotiable Instruments Law, which largely 
 follows the English Act in its wording, though the 
 arrangement is different. This Law has now been, 
 enacted by more than forty States and Territories 
 in the Union, and it is hoped that in time it will be 
 adopted by the whole of the States, so that uni- 
 formity of law will be secured throughout the 
 
Till PREFACE TO THE EIGHTH EDITION. 
 
 Union. In the present edition I have freely referred 
 to the American Code, as enacted for the State of 
 New York in 1897, especially when its language is 
 identical with that of the English Act. The cases 
 decided on it will be useful to us. The decision of 
 an American Court, trained irfthe common law, and 
 interpreting a statutory provision common to both 
 countries, must always be relevant when a similar 
 question arises in England, though it is not, of 
 course, a binding authority. 
 
 M. D. C. 
 
 July, 1919. 
 
( i* ) 
 
 CONTENTS. 
 
 PAOK 
 
 Table of Cases xv 
 
 List op Abbreviations xxxvii 
 
 Introduction to Third Edition (1883) xxxix 
 
 section of 
 Preliminary. the act. page 
 
 Short title of the Act ; 1 1 
 
 Local extent and construction — 1-2 
 
 Interpretation of terms 2 3 
 
 Form and Interpretation of Instruments. 
 
 Bill of exchange defined 3 9 
 
 Inland and foreign bills 4 17 
 
 Effect where different parties to bill are the same 
 
 person 5 18 
 
 Address to drawee 6 20 
 
 Certainty required as to payee 7 21 
 
 What bills are negotiable 8 26 
 
 Sum payable 9 29 
 
 Bill payable on demand 10 33 
 
 Bill payable at a future time 11 34 
 
 Omission of date in bill or acceptance 12 35 
 
 Ante-dating and post-dating 13 37 
 
 Computation of time of payment 14 38 
 
 Case of need ■ 15 42 
 
 Special stipulations by drawer or indoTser 16 43 
 
 Definition and requisites of acceptance 17 45 
 
 Time for acceptance 18 49 
 
 General and qualified acceptances 19 50 
 
 Incomplete instrument or blank signature 20 54 
 
 Delivery 21 58 
 
 Contracts on bill are contracts in writing — 64 
 
x Contents. 
 
 section of 
 Capacity and Authority of Parties. the act. page 
 
 Capacity of parties 22 68 
 
 Disabilities of bankers — 74 
 
 Signature essential to liability 23 75 
 
 Partners — 78 
 
 Forged or unauthorised signature 24 81 
 
 Procuration signatures 25 86 
 
 Person signing as agent or in representative capacity 26 89 
 
 Consideration fob Bills. 
 
 Value denned 27 93 
 
 Holder for value ...' 27 (2)... 97 
 
 Accommodation bill or party 28 101 
 
 Holder in due course .: 29 lOJt 
 
 Presumption of value and good faith 30 109 
 
 Rules as to impeachment of value — Ill 
 
 Transfek of Bills. 
 
 Negotiation of bill '. 31 121 
 
 Requisites of a valid indorsement 32 125 
 
 Conditional indorsement 33 129 
 
 Indorsement in blank 34 130 
 
 Special indorsement 34 (2). ..130 
 
 Restrictive indorsement : i 35 132 
 
 Negotiation of overdue or dishonoured bill 36 135 
 
 Negotiation of bill to party already liable thereon 37 140 
 
 Rights of the holder 38 142 
 
 Rights of action and proof — 143 
 
 Transmission by act of law — ,146 
 
 Transfer by assignment — 150 
 
 General Duties of the Holder. 
 
 Presentment for acceptance, when necessary 39 152 
 
 Time for presenting bill payable after sight 40 154 
 
 Rules as to presentment for acceptance 41 155 
 
 Non-acceptance after customary time for consideration. 42 159 
 
 Dishonour by non-acceptance, and its consequences ... 43 160 
 
 Duties as to qualified acceptances 44 161 
 
 Rule3 as to presentment for payment 45 163 
 
 Excuses for non-presentment and delay 46 169 
 
 Dishonour by non-payment 47 173 
 
 Notice of dishonour and effect of non-notice 48 174 
 
 Rules as to notice of dishonour 49 176 
 
 Excuses for non-notice and delay '. 50 186 
 
 Noting or protest of bill 51 194 
 
 , Duties of holder as regards payor 62 200 
 
" Contents. xi 
 
 section of . 
 Liabilities of Parties. the act. paue 
 
 Funds in hands of drawee 53 204 
 
 Relations oi holder and drawee — 205 
 
 Relations of drawer and drawee — 207 
 
 Liability of acceptor 54 200 
 
 Liability of drawer 55 212 
 
 Liability of indorser 55 (2). ..213 
 
 Who liable as indorser 56 214 
 
 Measure of damages against parties to dishonoured bill 57 217 
 
 Transferor by delivery and transferee 58 222 
 
 Accommodation party and person accommodated — 225 
 
 Discharge op Bills. 
 
 Payment in due course 59 227 
 
 Accommodation bill — 234 
 
 Recovery of money paid by mistake — 234 
 
 Banker paying demand draft whereon indorsement is 
 
 forged 60 239 
 
 Coincidence of right and liability 61 241 
 
 Express waiver or renunciation 62 242 
 
 Cancellation 63 244 
 
 Alteration of bill 64 246 
 
 Discharge of surety by dealings with principal — 251 
 
 Renewal — 257 
 
 Acceptance and Payment foe Honour. 
 
 Acceptance for honour 65 259 
 
 Liability of acceptor for honour 66 .261 
 
 Presentment to acceptor for honour or case of need ... 67..: 262 
 
 Payment for honour 68 263 
 
 Lost Instruments. 
 
 Holder's right to duplicate of lost bill 69 267 
 
 Action on lost bill 70 267 
 
 Bill in a Set. 
 
 Rules as to sets 71 270 
 
 "Copies" of foreign bills — 273 
 
 Conflict oi? Laws. 
 
 Rule? where laws conflict 72 274 
 
 Ciceques on a Banker. 
 
 Cheque denned 73 283 
 
 Presentment of cheque for payment ; 74 286 
 
 Revocation of banker's authority to pay 75 289 
 
 Relations of banker and customer — 291 
 
 General and special crossings denned 76 296 
 
xii Contents. 
 
 SECTION OF 
 
 Cheques on a Banker — continued. the act. baqe 
 
 By whom cheque may be crossed 77 297 
 
 Crossing a material part of cheque 78 298. 
 
 Duties of banker as to crossed cheques 79 299 
 
 Protection to banker and drawer where cheque is 
 
 crossed 80 301 
 
 Effect of "not negotiable" crossing 81 301' 
 
 Protection to collecting banker 82 302 
 
 Cheques drawn a/c payee , — 305 
 
 Promissoby Notes. 
 
 Promissory note defined 83 306 
 
 Delivery necessary to complete jiote 84 311 
 
 Joint and several notes 85 311 
 
 Notes payable on demand 86 312 
 
 Presentment for payment 87 314 
 
 Liability of maker '. 88 315 
 
 Application to notes of provisions as to bills of 
 
 exchange 89 316 
 
 Supplementary . 
 
 Good faith 90 316 
 
 Signatures by agent? 91 321 
 
 i Seal or signature of corporation 91 (2). ..324 
 
 Computation of time 92 325 
 
 When noting equivalent to protest : 93 326 
 
 Protest by householder 94 326 
 
 Dividend warrants may be crossed 95 327 
 
 Repeals 96 327 
 
 General savings 97 328. 
 
 Saving of summary diligence in Scotland 98 331 
 
 Construction of act with other acts or documents 99 331 
 
 Amendment of Scotch law of evidence 100 332 
 
 Schedules to Act. 
 
 Schedule I. — Form of protest by householder 33S. 
 
 Schedule II. — Enactments repealed 334 
 
 Statute of Limitations. 
 
 Rules as to limitations 336. 
 
 Securities for Bills of Exchange. 
 
 Rights of drawer 343 
 
 Rights of drawee or acceptor 344. 
 
 Rights of holder 34g 
 
 Rule in Ex parte Waring 348, 
 
 iof surety on bill 351 
 
Contents. xiii 
 
 Payment by Bill, Note oe Cheque. page 
 
 General rule as to payment 3(52' 
 
 Bill or note as collateral security 353 
 
 Conditional payment 353 
 
 Creditor holding higher security 355 
 
 Effect of laches 357 
 
 Bill or note as absolute payment 358 
 
 By bill for less sum than debt 359 
 
 Cheque sent in settlement received on account 359 
 
 Bill as evidence of debt 360 
 
 Payment of debts through post 361 
 
 Negotiable Securities fob Money. 
 
 Testsof negotiability 362 
 
 Bank notes 363 
 
 Bank post bills 364 
 
 Foreign bonds to bearer 364 
 
 Non- liability of foreign government 368% 
 
 Circular notes 368 
 
 Debentures , 369 
 
 Deposit notes 373 
 
 Dividend warrants 373 
 
 Exchequer bonds and> bills 374 
 
 Pay and pension warrants 375 
 
 Post office orders 375 
 
 Scrip 376 
 
 Share certificates and transfers 376 
 
 Treasury bills and currency notes 37*9 
 
 Warranty of title and genuineness 380 
 
 ArPENDK I. 
 
 Poems 381 
 
 Appendix II. 
 Statutes — 
 
 1 & 2 Viet. c. 110 (Execution against Bills) 386 
 
 16 & 17 Vict. c. 59 (Forged Indorsements) 387 
 
 17 & 18 Vict. c. 125 (Lost Negotiable Instruments) 388 
 
 34 & 35 Vict. c. 17 (Bank Holidays) 388 
 
 38 & 39 Vict. c. 13 (Bank Holidays) 391 
 
 46 & 47 Vict. c. 55 (Instruments to be crossed) 392 
 
 4/ & 48 Vict. c. 61 (Indorsement by Court) 393 
 
 51 & 52 Vict. u. 43 (Execution in County Court) 393 
 
 54 & 55 Vict. c. 39 (Stamps) 394 
 
 58 & 59 Vict. c. 16 (Receipts on Bills) 408 
 
xiv CONTENTS. 
 
 Appendix II. Statutes — continued. page 
 
 62&63 Viot. o. 9 (Stamps) : 408 
 
 3 Edw. 7, c. 1 (Irish Bank Holiday) 392 
 
 6 Edw. 7, c. 17 (Crossed cheques) 409 
 
 9 Edw. 7, u. 43 (Stamps) 408 
 
 8 Edw. 7, c. 69 (Companies Bills) 409 
 
 4 & 5 Geo. 5, o. 59 (Bankruptcy) 411 
 
 4&5 Geo. 5, c. 82 (Bills lost or delayed by War) 413 
 
 7 & 8 Geo. 5, c. 48 (Time for noting Bills) '.... 414 
 
 8 & 9 Geo. 5, c. 15 (Stamps) 415 
 
 INDEX 417 
 
XV 
 
 TABLE OF CASES CITED. 
 
 Abbott v. Hendricks, 16 
 
 Abel v. Sutton, 81 
 
 Abrey v. Crux, 16, 60, 64, 65, 
 
 228, 243 
 Ackerman v. Ehrensperger, 222 
 Adansonia Co., Me, 76, 77 
 A Debtor, In re, 96, 144, 251, 357 
 Aga Ahmed v. Judith Crisp, 257 
 
 3S1 
 Agra Bank, Ex parte, 208 
 
 — In re, 204, 291, 325 
 
 — v. Hoffman, 292 
 
 — v. Leighton, 115, 116, 
 
 143 
 Akrokerri Mines v. Economic 
 
 Bank, 5, 298, 299 
 Alcock v. Smith, 137, 139, 277, 
 
 278 
 Alderson v. Langdale, 250 
 Aldous v. Comwell, 249 
 Alexander v. Burchfield, 202, 2187, 
 288 
 
 — v. Sizer, 47, 90 
 
 — v. Thomas, 35 
 Allen v . Davis, 96 
 
 — v. Edmundson, 165, 170, 
 
 181, 182, 186, 187 
 
 — v. Kemble, 212, 276, 277, 
 
 278, 280 
 
 — v. London County & West- 
 
 minster Bank, 295 
 
 — v. Mawson, 10 
 
 — v. Sea, Eire and Life Assur- 
 
 ance Co., 19 
 
 — v. Suydam, 153 
 Alliance Bank, Ex parte, 348 
 
 — v. Eearsley, 77 
 
 Alsager v. Close, 62, 63, 116 
 Amner v. Clark, 17 
 
 Amory v. Mery weather, 136 
 Ancher v. Bank of England, 132 
 Ancona v. Marks, 5, 6, 145 
 Anderson v. Hillies, 358 
 
 — v. Weston, 37, 81, 140 
 Anderton v. Beck, 174 
 
 Angle v. N. W. Ins. Co., 106 
 Anglo-Greek Navigation Co., Re h 
 
 143 
 Angrove v. Tippett, 339 
 Ansell v. Baker, 228 
 Antoine v. Morshead, 73 
 Arbuthnot, Ex parte, 348 
 Archer v. Bamford, 115 
 Armfield v. Allport, 37 
 
 — v. London and West- 
 
 minster Bank, 293 
 Armitstead, Ex parte^ 148 
 Armstrong v. Christiani, 179 
 
 — v. Gibson, 117 
 
 Arnold v. Cheque Bank, 59, 63, 
 
 83, 85- 208, 239 
 Arthur v. Olarkson, 114 
 Ashling v. Boon, 402 
 Ashpitel v. Bryan, 23 
 Asprey v. Levy, 225 
 Astliey v. Johnson, 112, 114 
 Atkins v. Wardle, 410 
 Atkinson v. Hawdon, 250 
 Attenborough v. Clarke, 99, 101,. 
 353 
 — v. Mackenzie, 141, 
 
 231 
 Att.-Gen. v. Bouwens, 365 
 
 — _ v. Pratt, 208 
 Attkinson v. Bradford Building 
 
 Society, 291 
 Attwood v. Griffin, 249 
 
 — v. Munnings, 87, 88 
 
 — v. Battenbury, 144, 145- 
 Atwood v. Orowdie, 99 
 
XVI 
 
 Table of Casks Cited. 
 
 Aulton v. Atkins, 151 
 Austin v. Mead, 151 
 Awde v. Dixon, 54, 56, 106 
 Aylesford v. Morris, 96 
 Ayrey v. Eearnsides, 31 
 
 B. 
 
 Backhouse v. Oharlton, 289 
 Bagnall v. Andrews, 225 
 Bailey v. Bidwell, 109, 111 
 
 — v. Bodenham, 177, 178, 287 
 
 — v. Edwards, 252 
 
 — v. Porter, 168, 179 
 Bain v. Gregory, 179, 181 
 
 - Bainbridge v. Hemingway, 115 
 Bainesw. Wright, 257 
 Baker, Ex parte, 178 
 
 — v. Birch, 171 
 
 — v. Dening, 322 
 
 — v. Martin, 225 
 Baldwin v. Richardson, 186 
 Balfour v. Ernest, 88 
 
 — v. Sea Ass. Co., 93 
 Bamfleld v. Tupper, 340 
 
 Banco de Lima v. Anglo-Peruvian 
 
 Bank, 346 
 Banco de Portugal v. Waddell, 
 
 19, 146, 328, 412 _ 
 Bank of Australasia v. Breillat, 
 
 79, 80 
 Bank of Bengal v. Macleod, 87 
 Bank of Brazil, Ex parte, 218 
 Bank of England v. Anderson, 156 
 
 — v. Newman, 223 
 
 — v. Vagliano, 2. 
 
 26, 82, 294 
 Bank fiir Handel Industrie, Re, 
 
 205 
 Bank of Ireland v. Archer, 49 
 
 — v. Perry, 348 
 IBank of Montreal v. Exhibit and 
 
 Trading Co., 128, 249, 275, 401 
 Bank of Scotland v. Dominion 
 
 Bank, 245 
 Bank of United States v. United 
 
 States, 212 
 Bank of Utica v. Smith, 132 
 JBank of Van Diemen's Land v. 
 
 Bank of Victoria, 60, 153, 155, 
 
 159, 160 
 
 Bann v. Dalzell, 222 
 Banner, Ex parte, 343, 344, 345, 
 346, 349 
 
 — v. Johnston, 14, 345, 348. 
 
 349, 350 
 Banque Populaire de Bienne v. 
 
 Cave, 218, 220 
 Barber & Co., Re, 411 
 Barber v. Mackrell, 258 
 — *. Richards, 7, 62, 97, 116, 
 117 
 Barclay, Ex parte, 258 
 
 — v. Bailey, 165 
 Barker v. Sterne, 56 
 Barnard, Re, 45 
 Barnett v. Howard, 70 
 Barrington, In re, 125, 150 
 Bartholomew v. Hill, 189 
 Bartlett v. Benson, 132 
 
 — v.. Hawley, 91 
 Bartley v. Hodges, 280 
 
 Barton Thomson & Oo. v. Vigors 
 
 Bros., 344 
 Bartrum v. Oaddy, 229 
 Bateman v. Joseph, 188 
 
 — • v. Mid Wales Ey. Co., 
 72 
 Batson v. King, 66, 226, 254 
 Bavins it. L. & S. W. Bank, 13, 
 
 283, 302 
 Bawden v. Howell, 144 
 Baxendale o. Bennett, 54, 55, 62 
 Beak v. Beak, 289 
 Beauclerk v. Greaves, 373 
 Beamont, In re, 290 
 
 — v. Greathead, 229, 231, 
 
 312, 352 
 Bechervaise v. Lewis, 103, 143, 
 
 226, 351 
 Bechuanaland Oo. v. London 
 
 Trading Bank, 373 
 Beckham v. Drake, 75 
 Beech v. Jones, 226 
 Beecham v. Smith, 306, 310 
 Beeching v. Gower, 16, 166 
 Beeman v. Duck, 210, 211 
 Begbie v. Levi, 38 
 Belcher v. Campbell, 5, 148 
 Belfast Bank v. Doherty, 71, 110, 
 
 119 
 Belfast Banking Oo. v. Keown, 57 
 Bell v. Banks, 254 
 — v. Buckley, 258 
 
Table op Cases Cited. 
 
 xvn 
 
 - Bell v. Frankis, 189 
 
 — v. Gardiner, 94 
 
 — v. Lord Ingestee, 61, 62, 63 
 Bellamy v. Majoribanks, 296 
 Belshaw v. Bush, 228, 356 
 Bence v. Shearman, 151 
 Benedict v. Oowden, 249 
 Bentinck v . Dorrien, 162 
 Bentinck v. London Joint Stock 
 
 Bank, 367 
 Benton v. Martin, 61 
 Berg v. Abbott, 169 
 Berridge v. Fitzgerald, 175, 177, 
 
 186, 188 
 Berry v. Alderman, 110 
 Besant v. Cross. 66 
 Bethell, Be, 172, 339 
 Beveridge v. Burgis, 187 
 Bickerdike v. Bollman, 176, 190 
 Bidder v. Bridges, 359 
 Bignold, Ex parte, 171, 172, 247 
 Billing v. Devaux, 49, 208 
 Birchall v. Bullough, 402 
 Bird, Ex parte, 224 
 Birmingham Bank, Ex parte, 322 
 Bishop, Ex parte, 126, 225 
 
 — v. Balkis Co., 377 
 
 — v. Chitty, 157, 202 
 
 — v. Curtis, 147 
 
 — v. Hay ward, 141 
 
 — v. Young, 316 
 Bissell v. Fox, 240, 305 
 
 Black v. Ottoman Bank, 174, 254 
 
 — «. Pilcher, 307 
 Blackman v. Lehman, 35 
 Blain, Ex parte, 1 
 Blaine v. Bourne, 133 
 Blakeley Ordnance Co., In re, 370 
 Blanckenhagen v. Blundell, 23 
 Blewitt v. Tritton, 402 '• 
 Blumberg v. Life Interests Oorpn., 
 
 352 
 Bobbett v. Pinkett, 239, 240, 300 
 Boddington v. Schlencker, 168 
 Bodenham v. Hoskyns, 292 
 Boehm v. Garcias, 48, 53 
 Bolognesi's Case, 73 
 Bolton v. Dugdale, 31 
 Bonar v. Mitchell, 317 
 Borradaile v. Lowe, 189 
 Bosanquet v. Forster, 5 
 Bottomley v. Nuttall, 353 
 Bounsall v. Harrison, 140 
 
 Bourdin v. Greenwood, 340 
 Bowes, Be, 101 
 
 — v. Howe, 171 
 Boyd v. Emmerson, 292 
 
 — v. Fitt, 208 
 Boys, In re, 101, 353 
 
 Boyse, In re, 11, 14, 63, 207 
 Bradford Old Bank v. Sutcliffe, 
 
 201, 294, 338, 341, 352 
 Bradlaugh v. De Bin, 130, 276, 
 
 339 
 Bradley, v. Bardsley, 247 
 Brain v. Preece, 195 
 Braithwaite v. Coleman, 189 
 — v. Gardiner, 210 
 
 Brandao v. Barnett, 100, 329, 375 
 Bransby v. East London Bank, 
 
 292 
 Bray v. Hadwen, 185 
 Brett, Ex parte, 162, 344, 347 
 
 ■ — v. Levett, 188 
 Brioe v. Bannister, 10, 151 
 Bridges v. Berry, 152, 357 
 Brind v. Hampshire 59 
 Bristol Tramways Co. v. Fiat 
 
 Motors, Ltd., 2 
 Bristow v. Sequeville, 276 
 British India Co. v. Inland Be- 
 
 venue, 369, 370, 398 
 British Linen Co. v. Caledonian 
 Ins. Co., 
 206, 207 
 
 — v. Carruthers, 
 
 205 
 
 — v. Cowan, 84 
 
 — v. Eainey, 205 
 Britt v. Lawson, 168, 315 
 Broad, Be, Ex parte Neck, 343, 
 
 346 
 Broddelius v. Grischotti, 401 
 Bromage v. Lloyd, 59, 61, 62 
 
 . — v. Vaughan, 181 
 Bromley v. Brunton, 290 
 Brook v. Hook, 83 
 Brooks v. Elkins, 306 
 
 — v. Mitchell, 139, 284, 313 
 Brown's Estate, Be, 338 
 Brown v. Butchers' Bank, 323 
 
 — v. Curtis, 193 
 ^~ v. Davies, 137 
 
 — v. Langley, 66 
 
 Brown v. Butherford, 229, 338, 
 340 
 
 C 
 
XV111 
 
 Table of Cases Cited. 
 
 Brown v. Watts, 402 
 Brown, Shipley & Co. v. Inland 
 Revenue. 
 391, 398 
 — v. Kough, 
 
 346 
 Brownell v. Bonney, 189 
 Brutt v. Picard, 247 
 Bryant v. Banque du Peuple, 87 
 
 — v. Eastman, 128 
 Buchanan, Ex parte, 149 
 Buck v. Robson, 15, 398 
 Buckley, Ex' parte, 312 
 
 — v. Jackson, 133 
 Bulkeley v. Butler, 231 
 Bull *. O'Sullivan, 38 
 Bult v. Morrell, 45 
 Burbridge v. Manners, 183, 227, 
 
 231 
 Burchfield v. Moore, 211, 213, 224, 
 
 227, 238, 245, 247, 249, 250 
 Burdon v. Benton, 93, 97 
 Burgh v. Legge, 175, 188, 360 
 Burmester v. Barron, 178 
 
 — * v. Hogarth, 213, 361 
 Burn v. Morris, 239 
 Burrows v. Jemino, 279 
 Butcher v. Stead, '94 
 Butterworth v. Tie Despencer, 166 
 Buxton v. Jones, 166, 167 
 Byrom -v. Thompson, 247 
 
 C. 
 
 .Oaddington v. Davis, 173 
 
 Oaine v. Ooulton, 352 
 
 Caldecott, Ex parte, Be Maple- 
 back, 84 
 
 Callow v. Lawrence, 132, 135, 229, 
 233 
 
 Calvert v. Baker, 249 
 
 Cama, Ex parte, 93 
 
 Oamidge v. Allenby, 193, 194, 223, 
 358 
 
 Campbell v. French, 41, 42, 175 
 
 — v. Hodgson, 65 
 
 — . v. Webster, 189, 200 
 Cannam v. Parmer, 69 
 
 Capital and Counties Bank v. 
 
 Gordon, 19, 95, 241, 283, 298, 
 
 303, 362, 388, 409 
 Oardwell v. Martin, 247 
 Oarew v. Duckworth, 187, 191 
 Carlill *. Carbolic Co., 94 
 Carlon v. Kenealy, 29 
 Carlos v. Pancourt, 13, 14, 34, 35 
 Carr v. Nat. Bank, 205 
 Carrick, Ex parte, 346, 347 
 Carrier v. Sears, 117 
 Carris v. Tattersall, 247, 251 
 Carruthers v. West, 138 
 Carter v. Burley, 183 
 
 .— v. Plower, 175, 190 
 
 — v. White, 55, 174, 193, 254 
 Carvick v. Vickery, 127 
 Oastrique v. Bernabo, 161, 173, 
 
 338 
 
 — v. Buttigieg, 44, 61, 113 
 
 — v. Imrie, 245 
 Caton v. Oaton, 322 
 
 Caunt v. Thompson, 168, 175, 188 v 
 
 190, 192 
 Central Bank of London, Ex 
 
 parte, 81 
 Chalmers, Ex parte, 343 
 
 — v. Lanion, 136 
 Chamberlain v. Young, 18, 22, 212 
 Chambers *. Miller, 228, 237 
 Chapman v. Black, 258 
 
 — v. Oottrell, 275, 311 
 
 — v. Keane, 176, 178 
 
 — v. B/ose, 318 
 
 — v. Smethurst, 91, 411 
 Chard v. Pox, 181 
 
 Charles, In re, 146 
 
 — v. Blackwell, 83, 87, 88„ 
 240, 293, 305 
 Oharman, Ex parte, 33 
 Oharnley v. Grundy, 203 
 Chartered Bank v. Dickson, 284,. 
 
 313, 315 
 Ohasemore v. Turner, 341 
 Cheek v. Boper, 156 
 Ohesmer v. Noyes, 194, 195 
 Chester v. Dorr, 138 
 Chichester v. Hill, 107 
 Ohilds v. Monins, 90 
 Citizens' Bank of Louisiana v. 
 
 New Orleans Bank, 204, 208. 
 
 347 
 
Table of Cases Cited. 
 
 XIX 
 
 City Bank c Luckie, 348, 349, 
 
 350 
 Olaggett, Re, 33 
 Clare v. Dresdner, 292 
 Claridge v. Dalton, 191, 252 
 Clark v. Pigott, 145 
 
 — v. Whitaker, 124 
 Clarke, Ex parte, 213 
 Clayton v. Gosling, 35 
 Clegg v. Burnett, 373 
 
 — v. Levy, 276 
 
 Clement v. Oheeseman, 151, 290 
 
 Clerk v. Blaokstock, 249 
 
 Clifford v. Parker, 251 
 
 Clode v. Bayley, 185 
 
 Clutton v. Attenborough, 7, 24, 62 
 
 Coats, J. P. & Co., Ltd. v. 
 
 Disconto Gesellschaft, 295 
 Cooks v. Masterman, 237 
 Coe, Ex parte, 3, 291 
 Cohen v. Hale, 289, 355 
 
 — v. Mitchell, 149 
 Oolborne, Ex parte, 371 
 Cole v. Jessop, 165 
 Colehan v. Cooke, 35, 65, 306 
 Coleman v. Bucks and Oxon Bank, 
 
 101 
 
 Collins v. Martin, 99 
 
 Collinson v. Lister, 106 
 
 Collis v. Emmet, 54, 212 
 
 Collott v. Haigh, 102 
 
 Colonial Bank v. Cady, 363, 376, 
 379 
 
 Colonial Bank of Australasia v. 
 Marshall, 235, 236, 246 
 
 Colson v. Arnot, 106 
 
 Coltman, Me, 119 
 
 Comber v. Leyland, 98 
 
 Commercial Bank, Be, 30, 222 
 
 Commercial Bank of South Aus- 
 tralia, Re, 19, 95, 212, 218, 219, 
 220, 221 
 
 Commercial Bank of South Aus- 
 tralia v. Ehind, 293 
 
 Committee of London Clearing 
 •Bankers v. Inland B/evenue, 
 398, 405 
 Concha v. Murietta, 282 
 
 Conflans Quarry Co. v. Parker, 
 
 369 
 Connor v. Martin, 139 
 Conover v. Earl, 126, 127, 145 
 
 Conro v. Port Henry Iron Co., 77 
 
 Cook v. Lister, 135, 191, 209, 228, 
 
 229, 233, 234, 242, 251 
 
 — v. Satterlee, 11, 307 
 
 — v. Wright, 93 
 Cooper v. Meyer, 210, 211 
 
 — v. Waldegrave, 279 
 Ooppin v. Gray, 339 
 Oorbett v. Clark, 13 
 Cordery v. Oolville, 188 
 Cornes v. Taylor, 203 
 Cote, Ex parte, 59, 61 
 
 Oounsell v. Lond. and West. Dis- 
 count Co., 357 
 . Courtauld v. Sanders, 90 
 
 Oourtoy v. Vinoent, 148 
 
 Coward v.. Hughes, 94 
 
 Oowasjee v. Thompson, 358 
 
 Cowie v. Sterling, 23 
 
 Oowper's Trustees v. Nat. Bank 
 of Scotland, 293 
 
 Cox v. Troy, 59 
 
 Cranley v. Hillary, 201 
 
 Crawley «. White, 120 
 
 Orears v. Hunter, 93 
 
 Oripps v. Davis, 228, 232, 342 
 
 Cromwell v. Hewitt, 208 
 
 Crook v. Jadis, 318 
 
 Crosse v. Smith, 167, 181 
 
 Orossley v. Ham, 140 
 
 Crouch v. Credit Poncier, 121, 
 122, 142, 324, 329, 363, 372 
 
 Crowe v. Clay, 152, 203, 250, 268, 
 353, 357 
 
 Crowfoot v.. Gurney, 31 
 
 Croydon Gas Co. v. Dickinson, 257 
 
 Crumplin v. London Joint Stock 
 Bank, 304, 305 
 
 Crutchly v. Mann, 54, 55 
 
 Cumber v. Wane, 359 
 
 Cumming v. Shand, 207, 208, 293 
 
 Oundy v. Marriott, 192, 227, 250, 
 402 
 
 Cunliffe v. Whitehead, 123 
 
 Cunningham & Co., Lim., Re, 87, 
 325 
 — v. Smithson, 47 
 
 Curlewis v. Clarke, 359 
 
 — v. Oorfield, 189 ' ' ' 
 Currie v. Misa, 94, 95, 101, 104, 
 
 112, 144, 258, 353 
 Currier v. Lockwood, 307 
 
 b2 
 
XX 
 
 Table of Cases Cited. 
 
 Curtice v. London City and Mid- 
 land Bank, 289 
 Cutte i>. Perkiris, 207 
 
 D. 
 
 Da Costa v. Cole, 31 
 Daimler Co. Case, 73 
 Dando v. Boden, 217 
 Dann v. Sherwood, 22 
 Darnell v. Williams, 113 
 Davidson v. Cooper, 240 
 Davies v. Edwards, 341 
 
 — v. Humphreys, 339 
 Davis v . Clarke, 45 
 
 — v. Gyde, 356 
 
 — v, Eeilly, 144, 355 
 Davison, He, 312, 356 
 
 — v. Bobertson, 79 
 Dawes v. Harness, 116, 117 
 Dawkee v. Lord Deloraine, 14 
 Dawson v. Isle, 150 
 
 — v. Morgan, 220 
 
 — v. Prince, 86 
 Day v . Longhurst, 4, 124 
 
 — «. McLea, 359 
 
 — *. Nix, 115 
 
 Deacon v. Stodhart, 229, 264 
 
 Dean v. James, 352 
 
 De Bergareche v. Pillin, 166 
 
 Debtor, A, In re, 355 
 
 Decroix v. Meyer, 27, 51, 53, 249, 
 330 
 
 Defries, In re, 356 
 
 De la Chaumette v. Bank of Eng- 
 land, 95, 104, 112, 144, 276 
 
 De la Torre v. Barclay, 243 
 
 Dent v. Dunn, 222 
 
 Denton v. Peters, 7, 60, 63, 99, 
 113 
 
 Dermatine Co., The v. Ash worth, 
 410 
 
 De Tastet v. Baring, 220 
 
 Deuters v. Townsend, 136 
 
 Dever, Ex parte, 343, 346, 348. 
 349, 350 
 
 Deverill v. Burnell, 166 
 
 Dewhurst, Ex parte, 348, 349 
 
 Dickens v. Beal, 190 
 
 Dickin, Ex parte, 344 
 
 Dickinson, Re, 243 
 — v. Valpy, 79 
 
 Dillon, Be, 151, 373 
 
 — v . Dimmer, 257 
 Dingwall v. Dunster, 242 
 Dinsmore v. Duncan, 247, 308 
 Disconto Gesellschaft v. Brandt, 
 
 74 
 Dixon v. Bovill, 12 
 Dobie v. Larkan, 210 
 Dod v. Edwards, 232 
 Doman v . Dibdin, 32 
 Dominion Bank v. Anderson, 245 
 Don v. Lippmann, 277, 340 
 Douglas, In re, 146 
 Downes v. Church, 270 
 
 — v. Bichardson, 7, 247 
 Drain v. Harvey, 65 
 
 Drake «, Mitchell, 356 
 Drayton v. Dale, 211, 315 
 Dresser v. Missouri Co., 96, 111 
 Drew v. Nunn, 70 ; 294 
 Driefontein Consolidated Mines v. 
 
 Janson, 73 
 Druifi v. Parker, 61, 216 
 Drury v. Macaulay, 13, 307 
 Dryborough v. Boy, 332 
 Dugan v. United States, 132 
 Dumont v. Williamson, 44 
 Duncan, Pox & Co. v. N. & S. 
 
 Wales Bank, 203, 210, 213, 233. 
 
 234, 257, 351 
 Duncan v. Scott, 116 
 Dunn v. O'Keefe, 161, 175 
 Durie v. Fielding, 402 
 Dutton v. Marsh, 90, 324 
 
 E. 
 
 Earl v. Peck, 96 
 
 Early v. Bowman, 360 
 
 East v. Smith, 175, 176, 181 
 
 East India Co. v. Tritton, 230 
 
 East of England Banking Co., In 
 
 re, 171, 218 
 Easton v. Pratchett, 113 
 
 — i>. London Joint Stock 
 Bank, 367 
 Eastwood v. Bain, 89 
 
 ' -~ v . Eenyon, 93 
 Edelstein v. Schuler & Co., 368 
 
 373 ' 
 
 Edge v. Bumford, 123, 268 
 
Table of Cases Cited. 
 
 XXI 
 
 Edie v. East India Company, 28, 
 
 132, 329 
 Edis v. Bury, 10, 20 
 Edmonds v. Blaina Co., 369 
 Edmunds v. Bushell, 77 
 Edwards, Ex parte, 83 
 
 — v. Barnard, Be Bar- 
 
 nard, 45 
 
 — v. Chancellor, 94, 258 
 
 — v. Dick, 119, 120 
 
 — v. "Walters, 243 
 Elford v. Teed, 156, 165 
 Elkington v. Cooke Hill, 93 
 Ellis v. M'Henry, 279 
 Ellison v. Oollingridge, 10 
 Ellston v. Deacon, 79 
 Elmville, The, 92 
 
 Eleam v. Denny, 233 
 Elsworth v. Brewer, 233 
 Embiricos v. Anglo - Austrian 
 
 Bank, 1, 84, 86, 150, 277, 278, 
 
 328 
 Emblin v. Dartnell, 316 
 Emmanuel v. Bobarts, 294, 329 
 Emmett v. Tottenham, 6, 145 
 Employers' Liability Assn. v. 
 
 Skipper, 88 
 English Bank of the Biver Plate, 
 Me, 218 
 
 — Credit Co. v. Arduin, 207 
 
 — Investment Co. v. Brun- 
 
 ton, 369 
 Ertel Bieber & Co. v. Bio Tinto 
 
 Co., 74 
 Esdaile v. La Nauze, 83, 86 
 
 — v. Sowerby, 171, 188 
 European Bank, Ex parte, 102, 
 
 226, 2'57 
 — In re,. 99 
 
 Evans v. Cramlington, 132, 133 
 
 — v. Whyle, 223 
 Everard v . Watson, 179 
 
 Ewin v. Lancaster, 65, 251, 253 
 Ewing & Co. v. Dominion Bank, 
 
 84 
 Exon v. Eussell, 314 
 
 E. 
 
 Eairchild v. Ogdensburgh Bail. 
 
 Co., 19 
 Eaifclough v. Pavia, 115, 132, 
 
 136, 214 
 Eaith v. Eichmond, 76 
 Eanshawe v. Peet, 52, 53, 249, 
 
 330 
 Earquhar v. Sou they, 249 
 Pengl v. Eengl, 402 
 Eenn v. Harrison, 75, 223, 224 
 Eenton v. Blackwood, 258 
 Pentum v. Pocock, 253 
 Penwick, Stobart & Co., In re, 
 
 175, 189 
 Perris v. Bond, 21, 311 
 Pesenmayer v. Adoock, 309 
 Eessard v. Mugnier, 352 
 Pield v. Carr, 5 
 
 Pielder v. Marshall, 10, 20, 46 
 Pielding & Co. v. Oorry, 185 
 Pine Art Society v. Union Bank, 
 
 376 
 Pirst National Bank v. Hall, 129 
 — v. Word, 351 
 
 Pirth v. Brooks, 287 
 
 — v. Thrush, 181, 185, 183 
 Pisher v. Calvert, 14, 15, 398 
 
 — v. Boberts, 302 
 
 Pitch v. Jones, 53, 110, 112, 117, 
 
 119, 330 
 Plack v. London South Western, 
 
 295 
 Pleet f. Perrins, 147 
 Pleming v. Bank of New Zealand, 
 
 94, 293 
 Flight v. Reed, 93, 258 
 Flower v. Sadler, 117 
 Poakes v. Beer, 359 
 Foley v. Hill, 291 
 Follett v. Moore, 307 
 Poote v. Brown, 193 
 Porbes v. Marshall, 76, 309, 364 
 Ford v. Beech, 228 
 Forman v. Jacob, 77 
 
 •— v. Wright, 112 
 Forster v. Mackreth, 33, 38, 80, 
 
 284, 294 
 Foster v. Dawber, 109, 243, 244, 
 321 
 
 — v. Jolly, 16, .64, 65 
 
 — v. Julieri, 171 
 
XX11 
 
 Table of Cases Cited; 
 
 Poster v. Mackinnon, 54, 55, 323, 
 324 
 
 — v. Parker, 191 
 
 — v. Ward, 241 
 
 Pranoe v. Clark, 55, 57, 375, 377 
 Prancke &• Easch, Be, 170, 282 
 Praser v. Jordan, 255 
 Freakley v. Pox, 242 
 Prith v. Forbes, 34& 
 Froutz v. Roberts, 117 
 Pry v. Hill, 154 
 — v. Smellie, 379 
 Pryer v. Rbwe, 337, 360 
 Puller v.. G-lyn Mills & Co., 379 
 
 — v . Smith, 224 
 Purze v. Sharwood, 180 
 
 G. 
 
 Gaden *'. Newfoundland Savings 
 
 Bank, 285, 293 
 Gale v. Walsh, 195 
 Garden v. Bruce, 339 
 Gardner v. Maynard, 232 
 
 — v. Walsh, 249, 311 
 Garland v. ' Jacomb, 80, 210 
 Garnet* v. M'Kewan, 292 
 
 — v. Woodcock, 165 
 Garrard v, Cottrell, 226 
 
 — v. Lewis; 31, 56 
 Gaskin v. Davis, 29 
 Gates v. Beecher, 168, 178 
 Gatty v. Pry,. 33, 37, 395 
 Gay i>. Lander, 310 
 Geary v. Physic, 329 
 Gelmini v. Moriggia, 173; 337 
 General Estates Co., In re, Ex 
 
 parte City Bank, 371 
 Gen. 8. Amer. Co!, Ex parte, 351 
 — In re, 208, 220 
 
 George, In re, 243, 317 
 — v. Surrey, 322 
 Geralbpulo v. Wieler, 199, 264; 
 
 326 
 German v, Yates, 309 
 Gibb v. Mather, 163, 166, 167. 
 
 249, 307, 315, 316 
 Gibbs v. Premont, 212, 214; 279- 
 
 — v. Societe des Metaux, 
 
 279, 280 
 Gibson, Ex parte, 35 
 
 Gibson v. Hunter, 23 
 
 — v. Mihet, 23 
 Giddings v. Giddings, 62 
 Gilbey, Ex parte, 149 
 Gill v. Gubitt, 318 
 Gillespie, Be, 219 
 
 Gladwell v. Turner, 183, 186 
 
 •Glasscock v. Balls, 228, 230, 313 
 
 Glen v. Semple, 283 
 
 Glenie v. Bruce Smith, 54, 141 
 
 Glennie v. Imri, 115 
 
 Glyn v. Baker, 364 
 
 — v. Hood, 15 
 
 Goddard v. O'Brien, 359, 360 
 Godfray v. Coulman, 155 
 Goetz, Me, 150 
 
 Goggerley v. Cuthbert, 62, 63 
 Goldshede v. Cottrell, 358 
 Goldsmid v. Hampton, 11, 56 
 Gomersall, Be, 38, 100, 137, 319 
 Gomez, Ex parte, 343, 345, 351 
 Gompertz v. Bartlett, 224, 380, 
 402 
 — v. Cook, 88 
 Goodall v. Dolley, 189 
 
 — v. Polhill, 185, 265 
 Goodman v. Harvey, 140, 318 
 Goodwin v. Bobarts, 28, ?07, 285, 
 
 292, 317, 328, 329, 362, 365, 368. 
 372, 374, 376 
 Gordon v. Capital and Couaties 
 Bank, 84 (see Capi- 
 tal & Counties Bank 
 v. Gordon). 
 
 — v. Kerr, 314 
 
 — v. London and Midland 
 
 Bank, 95 
 Goee v. Gibson, 70 
 Gorgier v. Mieville, 365 
 Goring v. Edmonds, 217, 254 
 Goss «... Nelson, 34 
 Gothenburg Com. Co., In re, 345 
 Gould ». Coombs', 307 
 
 — v. Bobson, 252 
 Gbupy v. Harden, 43 
 Grant v. Da Costa, 15' 
 
 Graves v. American Bank, 82, 230 
 
 — v. Key, 138, 229 
 Gray v. Johnston, 292 
 
 — v. Megrath, 351 
 
 — v. Mider, 20 
 
 — v. Raper, 90 
 
 — v. Seckham, 99, 226, 351 
 
Tablk of Cases Cited. 
 
 xxm 
 
 Great Western By. v. London 
 and County Bank, 302, 303, 304 
 Green v. Carlill, 147 
 
 — v. Humphreys, 341 
 
 — v. Steer, 148 
 Greenough v. M'Clelland, 252, 253 
 Gregory v. Fraser, 402 
 
 Grey v. Cooper, 69, 71 
 
 Griffin v. Weatherby, 14, 165, 205, 
 
 270, 399, 402 
 Griffiths v. Kellog, 323 
 Guarantee Trust Co. of New York 
 
 v. Hannay, 14, 15, 114, 165, 203, 
 
 225, 239, 275, 294, 348 
 Guardians of Lichfield v. Greene. 
 
 223 
 Guepratte v. Young, 274 
 Gunn v. Bolckow Vaughan, 343. 
 
 354 
 Gurney v. Evans, 76, 78 
 
 — v. Womersley, 380 
 Gwinnell v. Herbert, 214, 316 
 
 Hadley (Felix) v. Hadley, 355 
 Halifax Union v. Wheelwright. 
 
 3, 240 
 Hall v. Cole, 252 
 
 — v. Featherstone, 109 
 
 — v. Fuller, 235 
 Hallett's Estate, Be, 135, 291 
 Hallifax v. Lyle, 210, 239 
 Halstead v. Skelton, 52, 201 
 Hamelin v. Bruck, 245, 247, 248 
 Hamilton v. Spottiswoode, 10, 12 
 Hanbury v. Lovett, 54, 249 
 Hannan's Lake View v. Arm- 
 strong & Co., 302 
 
 Hannum v, Richardson, 44 
 Hansard v. Robinson, 203, 268 
 Harding v. Edgecumbe, 340 
 Hardy v. Veasey, 293 
 
 — v. Woodroofe, 171 
 Hare v. Henty, 287, 288 
 Harmer v. Steele, 130, 209, 227, 
 
 229, 241 
 Harpham v. Child, 181 
 Harris v. Amery, 80 
 
 — v. Parker, 168 
 Harrison, Ex parte, 125 
 
 Harrison v. Dickson,, 219 
 
 — v. Ruscoe, 176, 177 
 
 — v. Walker, 148, 149 
 Harrop v. Fisher, 123, 125, 131, 
 
 321 
 Hart v. Stephens, 147 
 Harvey v. Cane, 29 
 
 — v. Martin, 49 
 Hatch v. Searles, 55, 57, 290 
 
 — v. Trayes, 15, 109 
 Haussoullier v. Hartsinck, 14 
 Hawkes v. Salter, 177, 183 
 Hawkins v. Cardy, 126 
 
 — v. Ward, 111 
 Hawley v. Beverley, 225, 232 
 Hay v. Ayling, 117, 258 ' 
 Hay and Kyd v. Powrie, 254 
 Hay ward, Ex parte, 11, 52, 56, 
 
 58 
 Haarblicker v. Baerselmann, 133 
 Heeney v. Addy, 32 
 Heilbut v. Nevill, 81, 83, 126, 127 
 Henderson v. Arthur, 67, 356 
 Henry v. Lee, 165 
 Herald v. Connah, 46 
 Herbert v. Sayer, 149 
 Herdman v'. Wheeler, 57, 62, 105 
 Herrick v. Woolverton, 314 
 Heseltine v. Siggers, 365 
 Hewitt v. Kaye, 289 
 
 — v. Thompson, 186 
 Heylyn v. Adamson, 307, 316, 317 
 Heywood v. Pickering, 169, 178, 
 
 287, 288 
 Hickie's Case, 348 
 Hicks v. Beaufort, 189 
 Higgins v. Beauchamp, 80 
 Highmore v. Primrose, 15 
 Hill v. Halford, 14 
 
 — v. Heap, 171, 173 
 
 — v. Royds, 205 
 
 — v. Wilson, 16, 66, 94 
 Hills v. Parker, 101 
 Hilton v. Fairclough, 183 
 Himmelman v. Hotaling, 139 
 Hindhaugh v. Blakey, 49- 
 Hine v. Allely, 166, 167, 183 
 Hirachand v. Temple, 360 
 Hirschfield v. Smith, 30, 131, 183, 
 
 248, 280, 281 
 Hirschman, v. Budd, 248 
 Hitchcock v. Edwards, 38, 107 
 
 — v. Humfrey, 174, 192 
 
XXIV 
 
 Table of Cases Cited. 
 
 Hitchings v. Northern Leather 
 Co. of America, 64, 66, 115 
 
 Hoare v. Cazenove, 261, 262 
 
 Hobbs v. Cathie, 399 
 
 Hogarth v. Latham, 56 
 — ' v. Wherley, 321 
 
 Hogg v . Skeen, 83, 110 
 
 Hoibrow v. Wilkins, 192 
 
 Holcomb v. Wyckoff, 111 
 
 Holdsworth v. Hunter, 18, 272 
 
 Holland v. Manchester, Liverpool 
 District Bank, 294 
 
 Holliday v. Atkinson, 113, 151 
 
 Holmes v. Durkee, 142 
 
 — v. Jaques, 22, 23 
 
 — v. Kerrison, 337 
 
 — v. Kidd, 136 
 
 — v. Staines, 180 
 Holt v, Eley, 237 
 Honey, Ex parte, 311, 412 
 Hooper •»„ Keay, 293 
 
 -r- v. Treffry, 114 
 
 — v. Williams, 307, 310 
 Hopkins v. Abbott, 307 
 
 — v. Ware, 174, 288, 357 
 Hopk-inson v. Porster, 205, 284, 
 
 347 
 Hopley v. Dufresne, 172 
 Horhblower v. Proud, 93, 150 
 Hornby v. McLaren, 103, 140 
 Home v. Bouquette, 276, 281 
 Hostater v. Wilson, 308 
 Houlditch v. Cauty, 180 
 Houle v. Baxter, 227 
 Housego v: Cowne, 180, 181 
 House Property Oo. v. London 
 
 County and Westminster Bank, 
 
 28, 303 
 Howden v. Haigh, 118 
 Howe, In re, 146 
 Howes v. Bishop, 70 
 Hubbard v. Gurney, 65 
 
 — ' v. Jackson, 141, 233 
 Huber v. Steiner, 280 ' 
 Hughes, Ex parte, 139 
 
 Hunt v. Gray, 250 
 Hunter v. Jefiery, 23 
 — v. Wilson, 97 
 Huntley v. Sanderson, 207, 339 
 Hutley v. Peacock, 71 
 Hutton v. Ward, 219 
 Hyams v. Stuart King, 93 
 
 I. 
 
 Ilsley v. Jones, 208 
 Imbert, Ex parte, 347 
 Imeson, Ex parte, 11 
 Imperial Bank of Canada v. Bank 
 
 of Hamilton, 238, 239, 246, 285 
 Imperial Land Oo. of Marseilles, 
 
 Be, 371 
 Imperial Loan Co. v. Stone, 70 
 Ingham v. Primrose, 62, 106, 232, 
 
 236, 243, 244 
 Inman v. Clare, 13, 347 
 Innes v. Munro, 258 
 Ireland v . Livingston, 343 
 
 Jackson v. Collins, 189 
 
 — v. Hudson, 21, 45 
 
 — v. Ogg, 338 
 
 • — v. Shanks, 116 
 
 — v. Slipper, 307 
 Jacobs, In re, 227, 252 
 
 — v. Benson, 22 
 
 — v. Morris, 87 
 
 Jagger Iron Oo. v. Walker, 258 
 Jamal v, Moolla Dawood, 380 
 James v, Gather wood, 276 
 Jameson v. Brick and Stone Co., 
 
 149 
 Jardine v. Payne, 360, 402- 
 Jefferies v. Agra Bank, 98 
 Jefferies v. Austin, 62 
 Jefferys v. Boosey, 1 
 Jefferson v. Ulster Bank, 268 
 Jeffryes v. Agra Bank, 98 
 Jenkins v. Tongue, 146 
 
 — & Sons v. Ooomber, 215 
 Jenney *. Herle, 14 
 Jennings v. Eoberts, 181 
 Jeune v. Ward, 48, 160 
 
 Jewell v. Parr, 234 
 Johnson v. Eobarts, 101 
 
 — v. Windle, 82 ' 
 
 Joint Stock Discount Company, 
 
 Ex parte, 349 
 Joint Stock Discount Company, 
 
 In re, 227 
 Jones, Ex parte, 71 
 
 — & Co. v. Coventry, 375 
 
Table of Cases Cited. 
 
 xxv 
 
 Jones v. Broadhurst, 141, 142, 
 203, 209, 212, 229, 2&2, 
 233, 234 I 
 
 — v. Goodwin, 208 
 
 — v. Gordon, 38, 96, 104, 109, 
 
 111, 116, 146, 320 
 
 — v. Gretton, 257 
 
 — v. Hibbert, 113 
 
 — v. Lane, 116 
 
 — v. Lock, 114, 289 
 
 — v. Merionethshire Building 
 
 Soc., 117, 119 
 
 — v. Peppercorn, 101 
 
 — v. Eyde, 224 
 
 — v. Simpson, 31 
 
 — v. Whitaker, 251, 252 
 Jonmenjoy v. Watson, 89 
 Jordeson & Co. v. London Hard- 
 wood Co., 344 
 
 Julian v. Shobrooke, 51 
 Jury v. Barker, 13, 67 
 
 Kilsby v. Williams, 292 
 Kimbro v. Bullit, 80 
 King v. Bickley, 179 
 
 — v. Crowell, 167 
 
 — v. Hoare, 312 
 
 — -v. Holmes, 169 
 
 — v. Milsom, 109 
 
 — v. Smith, 81 
 
 — v. Zimmerman, 268 
 Kingston, Ex parte, 101 
 Kinyon v. Stanton, 287 
 
 — v. WoMford, 62 
 Kirk *, Blurton, 46, 76 
 Kirkwood v. Carroll, 306 
 
 — v. Smith, 307 
 Kleinwort v. Comptoir D'Es- 
 
 compte, 59, 302 
 Knight v. Clements, 248, 251 
 Knill v. Williams, 248 
 Kymer v. Laurie, 294 
 
 K. 
 
 Keane v. Beard, 29, 214, 284 
 Kearney v. W. Granada Com- 
 pany, 270 
 Kearns v. Durell, 116 
 Keene v. Keene, 222 
 Keith v. Burke, 189 
 Kelly, Ex 'parte, 345 
 
 — v. Solari, 237 
 Kelner v. Baxter, 89 
 Kemp, Ex parte, 98, 150 
 
 — v. Balls, 232 
 Kempson v. Ashbee, 96 
 Kendal v. Wood, 236 
 Kendall v. Hamilton, 312 
 
 • Kendrick v. Lomax, 258 
 Kennedy v. Thomas, 40, 173, 174, 
 
 183, 337 
 Kennerley v. Nash, 247 
 Kepitigalla Eubber Estates v. 
 National Bank of India, 85, 236, 
 
 Kerman v. Wainwright, 96 
 Kerrison v. Glyn, Mills & Co., 237, 
 
 239, 292 
 Kibble, Ex parte, 71 
 Kilby v. Bochussen, 188 
 Kilgour v. Pinlyson, 81 
 
 :'{ 
 
 L. 
 
 Lacave v. Credit Lyonnais, 302 
 
 303 
 Ladbroke & Co. v. Todd, 303, 3J 
 T iffin v. Sinsheimer, 46 
 Lafitte v. Slatter, 191 
 •Laing v. Barclay, 207 
 
 — v. Stone, 218, 222ljgP' ; " 
 Lambert, Ex parte, 265 ^W~ 
 Lamberton v. Aiken, 29 
 Lambton, Ex parte, 343, 348, 349 
 Lamert v. Heath, 380 
 Lampleigh v. Braithwaite, 93 
 Lancaster Bank v. Taylor, 124 
 Land Credit Company, In re, 88, 
 
 32.5 
 Landes v. Bradwell, 90 
 Lane v. Kreckle, 315 
 Lang v. Smyth, 365 
 Langrish v. Watts, 341 
 Langton v. Lazarus, 245 
 Latham v. Chartered Bank 
 
 India, 252, 347 
 Latouche v. Latouche, 93 
 Latourette v. Williams, 
 Latter v. White, 59 
 Law v. Parnell, 130, 143, 145 
 Lawrence v. Walmsley, 255 
 
 of 
 
XXVI 
 
 Table of Cases Cited. 
 
 Lawrence v. Wilcocks, 217 
 
 Laws v. Rand, 287 
 
 Lawson's Exors. v. Watson, 11, '56 
 
 Lazarus v. Oowie, 234 
 
 Leach v. Hewitt, 190 
 
 Leadbitter v. Parrow, 7.6, 91 
 
 Leader i>. Discern to Gesellschaft, 
 
 292 
 Leake v. Young, 353 
 Leather v. Simpson, 114 
 Leather Manufacturers' Bank v. 
 
 Morgan, 293 
 Leavitt v. Putnam, 135 
 Lebel *>. Tucker, 17, 71, 214, 276 
 Lecaan v. Kirkman, 188 
 Lee v. Hayes, 112 
 
 — v. Magrath, 150 
 
 — v. Zagury, 137, 143, 258 
 Leeds Bank v. Walker, 224, 246, 
 
 249 
 Leete v. Disoonto Gesellschaft, 
 
 292 
 Leftley v. Mills, 138, 230, 326 
 Legge v. Thorpe, 200 
 Lemere v. Elliott, 309 
 Leonard v, Wilson, 76 
 Leslie, Ltd. v. Shiel, 70 
 Levene v. Brougham, 70 
 Levi's Case, 348, 349 
 Levieson v. Lane, 79 
 Lewes Sanitary Laundry Oo. v. 
 
 Barclay, Bevan & Co., 85 
 Lewis v. Bright, 69 
 
 — v. Olay, 105, 323 
 
 — v. Lyster, 257 
 
 — v. Parker, '139 
 
 — v. Reilly, 81 
 
 Lichfield Union (Guardians of) v. 
 
 Greene, 309; 357 
 Lilley v. Eankin, 118, 120 
 Lindley v. Lacey, 67 
 Lindo v. Hnsworth, 183 
 Lindus v. Bradwell, 46, 47, 76, 77, 
 
 321 
 Lithgow v. Lyon, 218 
 Little v. Slackford, 12 
 Liverpool Bank v. Walker, 90 
 Lloyd v. Ashby, 46 
 
 — v. Davis, 115 
 
 — v. Howard, 7, 62, 63, 116, 
 
 117, 136 
 
 — v. Oliver, 10 
 
 Lloyd v. Sigourney, 133, 134 
 Lloyds Bank v. Cooke, 57, 64, 
 
 104, 105, 121 
 Lloyds Bank v. Swiss Bankve- 
 
 rein, 93, 101, 355, 366, 367, 377 
 Loaring, Ex parte, 354 
 Letter's Oase, 349 
 Lomas v. Bradshaw, 97 
 London and Birmingham Bank, 
 
 Be, 355 
 London & Bombay Bank v. Nar- 
 
 raway, 144 
 London and County Bank v. 
 
 Groome, 139 
 London & County Bank v. Biver 
 
 Plate Bank, 93, 104, 366, 377 
 London & Provincial Bank v. 
 
 Roberts, 247 
 London & River Plate Bank v. 
 
 Bank of Liverpool, 238, 239 
 London & Sub. Bank v. Walkin- 
 
 shaw, 228 
 London South- Western Bank' v. 
 
 Buszard, 292 
 London & S. W. Bank v. Went- 
 
 worth, 49, 55, 211 
 London & Universal Bank v. 
 
 Clancarty, 217 
 London Banking Corporation v. 
 
 Horsnail, 228 
 London Chartered Bank of Aus- 
 tralia v. White, 100 
 London Clearing Bankers (Com- 
 mittee of) v. Inland Revenue, 
 
 365 
 London Joint Stock Bank v . Mac- 
 
 millan, 32, 57, 86, 235, 236, 246, 
 
 291, 328 
 London Joint Stock Bank v. 
 
 Simmons, 104, 367 
 Long v. Moore, 248 
 Loomis v. Ruck, 116 
 Lord v. Hall, 321, 322 
 Lord Ward v. Oxford Ry. Co., 170 
 Loughman v. Barry, 355 
 Lovell v. Hill, 10 
 Low v. Copestake, 145 
 Lowe v. Peskettj 241 
 Lowenthal, Exparte, 176, 179, 195 
 Lubbock v. Tribe, 166 
 Ludwig Tilman, Re, 345 
 Lumley v. Hudson, 257 
 
 — *. Musgrave, 257 
 
Table of Cases Cited. 
 
 xxvii 
 
 Lutscher v. Comptoir D'Escompte, 
 
 344 
 Lynch, Ex parte, 71 
 Lynn v. Bell, 284 
 Lyon v. Maxwell, 229 
 Lysaght v. Bryant, 60, 166, 178 
 
 M. 
 
 Macartney v. Graham, 268 
 Macbeth v. North & South Wales 
 
 Bank, 24 
 Macdonald v. Whitfield, 66, 216, 
 
 217, 226, 253 
 McEntire v. Potter, 239 
 Macintosh v. Haydon> 201 
 Mackay v. Judkins, 177, 187 
 Maclae v. Sutherland, 312 
 Macleod v. Snee, 14 
 M'OaU v. Taylor, 11 
 McEneany v. Shelvin, 373 
 McEntire v. Potter, 230, 376 
 McGregor v. Ehodes, 213 
 M'Gubbin v. Stephen, 22 
 McHenry v. Daviee, 70 
 M'Kenzie v. British Linen Co., 
 
 84, 85 
 McKinnon v. Armstrong, 233 
 M'Lean v. Clydesdale Banking 
 ' Company, 94, 95, 104, 284, 289, 
 
 330 
 McManus v. Bark, 66 
 M'Meekin v. Euston, 91 
 McNeil v. Innes, 331 
 McTavish v. Michael's Trustees, 
 
 189 
 Maguire v. Dodd, 63 
 Mahony v. East Holy ford Mining 
 
 Company, 73, 325 
 Maillard v. Argyle, 228, 353 
 — v. Page, 65, 66, 258 
 Mainwaring v. Newman, 241 
 Maitland v. Backhouse, 96 
 Maltass v. Siddle, 191 
 Maltby v. Murrels, 200, 314 
 Manchester Bank, Ex parte, 349 
 Manchester Banking Co. v. Per- 
 
 guson & Co., 332 
 Manley v. Boycott, 63, 253 
 
 Manners, Ex parte, 146 
 Marc v. Eouy, 396, 401 
 Mare v. Charles, 46, 330 
 Margrett, Ex parte, Re Soltykoff. 
 
 71 
 Marion County v. Clark, 108 
 Marreco v. Bichardson, 95, 341 
 
 353, 355 
 Marseilles Company, In re, 10, 275 
 Marston v. Allen, 6, 7, 142 
 Martin v. Chauntry, 11 
 
 — v. Morgan, 236 
 Martingell, Ex parte, Be Browne, 
 
 93 
 Marum, Ex parte, 73 
 Marzetti v. Williams, 292 
 Mason v. Bradley, 249 
 
 — v. Biumsey, 47 
 Master v. Miller, 245, 248 
 Masters v. Baretto, 310, 314, 315 
 
 — v. Ibberson, 108 
 Mather v. Maidstone, 94, 110, 238: 
 
 258 
 Mathiessen «. London and County 
 
 Bank, 303 
 Matthew, Ex parte, 357 
 Matthews v. Bloxsome, 215, 216 
 
 — v. Brown & Co., 302 
 Maxouduff, Ex parte) 234 
 Maxwell v. Brain, 179, 180 
 
 — v. Tuhill, 340 
 May v. Chapman, 108, 109 
 
 — v. Chidley, 285 
 Mayer v. Jadis, 131 
 Mayhew v. Boyes, 252 
 Mead v. Young, 82 
 Megrath v. Gray, 143, 255 
 Mellersh v. Bippen, 181 
 Mellish v. Eawdon, 154 
 
 — v. Simeon, 220, 221 
 Merchants' Bank v. Birch, 182 
 
 — v. Henson, 133 
 
 — v. Spioer,. 323 
 
 — v. State Bank, 
 
 284 
 Meredith, Ex parte, 279 
 Merriam v. Wolcott> 
 Merritt v. Cole, 325 
 Metcalfe v. Bichardson, 180, 181 
 Meyer v. Hibsher, 167, 169 
 
 — v. Eichards, 225, 380 
 
 — v. Sze Hai Tong Banking 
 
 Co., 299, 352 
 
XXV111 
 
 Table of Cases Cited. 
 
 Miers v. Brown, 175 
 Miller v. Miller, 151 
 
 — v. Race, 309, 363 
 
 — v. Thomson, 19; 153 
 Mills v. Barber, 109, 113 
 
 — «. Gibson, 189 
 Milnes v. Dawson, 99, 113, 237 
 
 — v. Duncan, 237 
 Mitchell v. Baring, 197, 260 
 
 — v. Smith, 125 
 Mitchell Henry v. Norwich Union, 
 
 60, 361' 
 Moffatt v. Edwards, 30 
 Moline, Ex parte, 173 
 Molloy v. Delves, 54 
 Monetary Advance Oo. v. Oater, 
 
 118 
 Monmohunee m. Secretary of State, 
 
 126 
 Monson v. Drakeley, 312 
 Montague v. Perkins, 37, 54, 56, 
 
 58, 337 
 Moore v. Bushell, 205 
 Morgan v. Davison, 165 
 
 — v. Jones, 307, 360 
 
 — v. Lariviere, 206 
 
 — i). Bowlands, 340, 341 
 Morison v. Kemp, 88, 239 
 
 — v. London County • and 
 
 Westminster Bank, 
 85, 86, 88, 89, 239, 
 303, 304, 305 
 
 Morley v. Oulverwell, 227, 231 
 
 Morris, In re, 146 
 
 — v. Baron & Co., 64 
 
 — v. Bethell, 84, 321 
 
 — *. Walker, 141 
 Morrison v. Buchanan, 155 
 Mortgage Insurance Corporation 
 
 v. Inland Revenue, 398 
 Moss v. Hancock, 107 
 Moule v. Brown, 164, 223, 288 
 Moulis v. Owen, 119, 120, 278 
 Mowbray, Ex parte, 123 
 Muir v. Crawford, 251, 252 
 Muller v. Pondir, 59 
 Munger v. Sl^annon, 15 
 Munroe v. Bordier, 97 
 Murray v. East India Company, 
 26, 222, 340 
 
 — v. King, 192 
 
 — v. Lardner, 318 
 
 Murrow v. Stuart, 133 
 Mutford v. Walcot,, 41, 50, 259 
 Mutton v. Young, 148 
 Muttyloll Seal v. Dent, 62, 63 
 
 N". 
 
 Napier v. Schneider, 220 
 Nash v. Brown, 113 
 — v. De Freville, 236, 242 
 Nassau Steam Press v. Tyler, 410 
 Natal Investment Co., Re, 371 
 Nathan v. Ogden's, Ltd., 13, 283 
 National Bank v. Silke, 27, 95 y 
 
 133, 302, 305 
 National Bolivian Navigation Co, 
 
 v. Wilson, 368 
 National Park Bank of New York 
 
 v. Berggren, 104 
 National Park Bank v. Ninth 
 
 Bank, 210 
 National Savings Bank v. Tranahv 
 
 354 
 Neale v. Turton, 241, 242, 310 
 Neck, Ex parte, Re Broad, 343 
 Nevill v. Snelling, 96 
 New London Credit Syndicate v. 
 
 Neale, 65 
 Newton, Ex parte, 99, 113, 328 
 New York Contracting Co. v. 
 
 Selma Savings Bank, 190 
 Nicholls v. Diamond, 46 
 
 — v. Evans, 6 
 Nicholson v. G-outhit, 171 
 
 — v. Kevin, 249, 312 
 
 — v. Bicketts, 77 
 Nightingale v. Withington, 71 
 Norman v. Eicketts, 60, 361 
 Norris v. Aylett, 258 
 
 North and South Wales Bank v. 
 
 Macbeth, 24, 83, 84 
 North Stafford Loan Co. v. Wy- 
 
 thies, 188 
 Norton v. Ellam, 314, 338 
 
 — v. Seymour, 77 
 Norwich Bank v. Hyde, 32 
 Novelli v. Eossi, 245 
 Nunn, In re, 102, 113 
 Nye v. Macdonald, 194 
 
Table of Cases Cited. 
 
 xxix 
 
 o. 
 
 Oakley v. Boulton, 54, 111 
 
 Odell v. Oormack, 46, 81 
 
 Odessa, The, 345 
 
 Ogden v. Benas, 82, 239, 240, 301 
 
 Ogilvie v. West Australian Mort- 
 gage Corp., 84 
 
 O'Keefe v. Dunn, 156, 227 
 
 Okell v. Charles, 46 
 
 Olcott v. Rathbone, 145 
 
 Ord v. Portal, 145 
 
 O'Eeilly v. Biohardson, 88 
 
 Oridge v. Sherborne, 30, 39 
 
 Oriental Bank, Ex parte, 106, 137, 
 344 
 — In re, 234 
 
 Oriental Fin. Corp. v. Overend, 
 102, 111, 251, 253, 254, 255 
 
 Orr v. Union Bank, 84, 206, 240 
 
 Oulds v . Harrison, 115, 136 
 
 Outhwaite v. Luntley, 248 
 
 Overend, Ex parte, 411 
 
 — v. Oriental Fin. Corpo- 
 ration, 65 
 
 Owen v. Homan, 251 
 — v. Von JUster, 45, 48 
 
 Paine v. Bevan, 119 
 Palmer v. Bramley, 356 
 
 — v. Pratt, 13, 35 
 Panoustos v. Raymond Hadley, 
 
 207 
 Pap6 v. Westacott, 352 
 Parker v.^ Gordon, 156, 165 
 Parr, Ex parte, 348 
 , _"• •„. Jewell, 138, 234 
 Parr's Bank v. Ashby, 168 
 Parshley v. Heath, 45 
 Parson v. Nesbitt, 341 
 Partridge v. Bank of England, 98, 
 
 373 
 Pasmore v. North, 37 
 Patent Safety Gun Cotton Co. v. 
 
 1 Wilson, 85, 301 
 Patience v. Townley, 170 
 Patrick v. Harrison, 115 
 Paul *. Joel, 179, 180 
 
 Pavy's Patent Co., In re, 344 
 Payana v. Pana Lanu, 250 
 Payne v. Ives, 217 
 Peacock v. Purssell, 100, 152, 163, 
 166, 353 
 — v. Bhodes, 130, 319 
 Pearl v. Deacon, 256, 351 
 Pearse v. Pemberthy, 192, 202 
 Pearson v. Crallan, 177 
 
 — v. Garret, 35 
 Pease v. Hirst, 99, 144 
 Peizer v. Lefkowitz, 97, 250 
 Penkivil v. Connell, 312 
 Pennington v. Crossley, 50 
 Penny v. Innes, 213, 215 
 Penrose v. Martyr, 46, 410 
 Pentz v. Stanton, 76 
 Percival v. Dunn, 15 
 Perring v. Hone, 249 
 Perry v. Slade, 360 
 
 Peruvian Bail ways Co., Re, 72, 
 
 411 
 Petit v. Benson, 51 
 Peto v. Reynolds, 20, 307 
 Petty v. Cooke, 113, 252, 253, 254 
 Phelps v. Comber, 346 
 Philips v. Astling, 171, 192 
 Phillips v. Franklin, 222 
 
 — v. im Thurn, 23, 211, 212, 
 
 237, 262 
 Philpot v. Briant, 163, 167, 209, 
 
 254 
 Phipps v. Tanner, 32 
 Phipson v. Kellner, 188 
 Picker v. London and County 
 
 Bank, 363, 366 
 Pickin v. Graham, 188, 189 
 Pier v. Heinrichschoffer, 170 
 Pierce v. Cate, 171 
 
 — v. Fothergill, 201 
 Pierson v. Hutchinson, 268 
 Pike, Ex parte, 118, 123 
 Pinard v. Klockman, 270 
 Plato v. Beynolds, 157 
 Plimley v. Westley, 28, 214, 402 
 Plitt, Ex parte, Re Brown, 95, 148 
 Poirier v. Morris, 94, 98, 143 
 Polak *. Everett, 254 
 Polglass v. Oliver, 352 
 
 Polhill v. Walter, 47, 89 
 Pollard v. Bank of England, 228 
 
 — v. Hemes, 16, 30, 166 
 
 — v. Ogden, 233 
 
XXX 
 
 Table of Cases Cited. 
 
 Pollock v. Wright, 5 
 Poole v. Dioas, 195 
 
 — v. Tumbridge, 210 
 Pooley v. Brown, 224 
 
 — v. Driver, 76, 78 
 Poppleton, Ex /parte, 118 
 Porter v. Freudenberg, 73 
 Pott v. Olegg, 287, 291 
 Potter v. Brown, 279 . 
 Potts v. Reed, 133, 135 
 Powles v. Hargreaves, 348, 349, 
 
 350, 351 
 Prange, Ex parte, 181 
 Prehn v. Royal Bank of Liverpool, 
 
 208 
 Premier Indust. Bank v. Carlton 
 
 Co., 411 
 Presoott v. Flinn, 211, 321 
 Price v. Mitchell, 314 
 
 — v. Neal, 237 
 
 — v. Taylor, 35 
 Prideaux v. Collier, 163 
 
 — v. Griddle, 169, 178, 287 
 Prince Adelbert, The, 345 
 
 — v. Brunatte, 69 
 
 — v. Oriental Bank, 185, 245, 
 
 293 
 Provincial Bank of Ireland v. 
 
 Dunne, 252 
 Provincial Bank of Ireland v. 
 
 Pisher, 307 
 Pruessing v. Ing, 33, 403 
 Pyke, Ex parte, 118 
 
 Q. 
 Quarrier v. Coleston, 309 
 
 E. 
 
 Eabey v. Gilbert, 189 
 
 Bainbow v. Juggins, 256 
 
 Ealli v. Dennistoun, 234/244, 272, 
 
 280 
 Bamchurn Mullick v. Luchmee- 
 
 chund Badakissen, ' 152, 155, 
 
 202, 284, 314 
 Eamuz v. Crowe, 203 
 Eandall v. Moon, 228 
 
 — v. Thorn, 314 
 Eanken v. Alfaro, 205, 347 
 
 Eaper v. Birbeck, 245 
 Eaphael v. Bank of England, 98, 
 105, 110, 364 
 — v. Burt, 380 
 Eawlinson v. Stone, 147 
 Eayner, Ex parte, 76 
 Eead *. Hutchinson, 223 
 Eedfern i. Rosenthal, 136 
 Eedmayne v. Burton, -60, 106 
 Reed, Ex parte, 233 
 
 — v. Wiggins, 120 
 Eeg. v. Bartlett, 18 
 
 — v. Bowerman, 11, 56 _ 
 
 — v. Elliot, 32 
 
 — v. Holden, 76 
 
 — v. Kinnear, 153 
 
 — v. Eandall, 22 
 
 — v. Eitson, 38 
 
 — v. Rogers, 86 
 
 — v. Watts, 293 
 Reid v. Pumrval, 100 
 
 — v. Rigby, 88 
 Benwick v. Tighe, 177 
 Eew v. Pettet, 90 
 Eex v. Elliot, 32 
 
 — v. Ellor, 12 
 
 — v. Eandall, 22 
 Reynolds v. Chettle, 168 
 
 — v. Doyle, 225, 339 
 
 — v. Wheeler, 226 
 Rhodes, Ex parte, 123 
 
 — v. Gent, 360 
 
 — v. Morse, 267 
 
 — v. Smethurst, 342 
 Rice v. Grange, 98 
 
 — v. Stearns, 44, 132, 135 
 Eichards, Be, 59, 61, 63 
 
 — v. Prankum, 125 
 
 — v. Richards, 32, 65, 241, 
 
 338 
 Eichardson v. Eichardson, 150 
 Eichdale, Ex parte, 38, 95 
 Eicketts v. Bennett, 80 
 Eickford v. Ridge, 175 
 Ridd .v. Moggridge, 312 
 Ridout v. Bristow, 16 
 Ripon City, The,. 92 
 Ritchie v. Clydesdale Bank, 293 
 River Steamer Company, In re, 
 
 328, 336, 341 
 Roach v. Thompson, 226 
 Robarts, Ex parte, 209, 218, 219, 
 
 220, 221, 328 
 
Table of Cases Cited. 
 
 XXXI 
 
 Robarts v. Tucker, 82, 83, 130, 
 , 211, 230, 231, 236, 
 294 
 Roberts, Ex parte, 223 
 
 — v. Bethell, 37, 50 
 
 — i. Pisher, 225 
 
 — v. Marsh, 283 
 
 — v. Plant, 285 
 Robertson v. Burdekin, 277 
 
 — r. Kensington, 129 
 Robey v. Oilier, 205, 346, 347, 348 
 Bobinson v. Ames, 158 
 
 — v. Benkel, 37, 38 
 f. Bland, 278 
 
 — v. Oook, 352 
 
 v. Hawksford, 287 
 
 — v. Lynes, 70 
 
 — v. Reynolds, 111, 114 
 
 — v. Yarrow, 210 
 Robson v. Oliver, 174, 193, 223 
 Roche v. Campbell, 315 
 Rodriguez v. Speyer Bros., 73 
 Roehner v. Knickerbocker Life 
 
 Assurance Company, 39 
 Rofiey v. Green well, 32, 35 
 Rogers v. Hunt, 217 
 
 — v. Langford, 223 
 
 — v. Whiteley, 291 
 Rogerson v. Ladbroke, 289 
 Rohde v. Proctor, 146 
 Rolin v. Steward, 208 
 Rolls v. Pearce, 290 
 Romer, In re, 355 
 
 Romford Canal Company, In re, 
 
 373 
 Rordasnz v. Leach, 145 
 Roscow v. Hardy, 175 
 Rose v. Sims, 93, 123, 125 
 Rasher v. Kieran, 177 
 Ross v. L. 0. & West. Bank, 241, 
 
 302 
 Rothschild v. Corney, 139 
 
 — v. Currie, 169, 200 
 
 — v. Inland Revenue, 
 
 405 
 Rouquette v. Overmann, 31, 170, 
 
 209, 212, 213, 281, 282 
 Rouse v. Bradford Banking Com- 
 pany, 254 
 Rowe v. Tipper, 184, 192, 202, 209 
 — v. Young, 51, 53, 162, 200, 
 201 
 Roxburghe v. Cox, 136 
 
 Royal Bank of Scotland v. Com- 
 mercial Bank, 350 
 
 Royal Bank of Scotland v. Totten- 
 ham, 33, 37, 38, 95, 395 
 
 Royoe v. Barnes, 143 
 
 Ruff v. Webb, 12, 322 
 
 Rumball v. Metropolitan Bank, 
 376 
 
 Rumboll, Ex parte, 351 
 
 Russell v. Langstaffe, 54, 330 
 — «. Phillips, 48, 52 
 
 Rutherford, In re, 337 
 
 S. 
 
 Sackett v. Palmer, 35 
 Salmon v. Webb, 61, 66 
 Samuel v. Newbold, 06 
 Sanderson v. Collman, 210 
 Sands v. Clarke, 171, 174, 314 
 Sard v. Rhodes, 358 
 Saul *. Jones, 166, 167, 172, 249 
 Saunderson v. Jackson, 322 
 
 — v. Judge, 315 
 
 — v. Piper, 31 
 Savage v. Alldren, 338 
 Sawyer v. Wisewell, 109 
 Saxby v. Pulton, 119, 278 
 Scaramanga v. Stamp, 330 
 Scard v. Jackson, 55 
 Scarpellini v. Ateheson, 340 
 Schofleld, Ex parte, 100 
 Scholfield v. Londeshorough, 7, 
 
 2,35, 246, 247 
 Scholey v. Ramsbottom, 106, 235 
 Schroder's Case, 228 
 Schroeder v. Central Bank, 204, 
 
 347 
 Schultz v. Asfley, 26, 55 
 Scott v. LiffoTd, 97, 102, 113 
 Scudder v. Union Bank, 275 
 Sebag v. Abitbol, 162 
 Second Nat. Bank v. Maguire, 
 
 190 
 Seligman v. Huth, 62 
 Serle-w. Norton, 284 
 S err el v. Derbyshire Railway 
 
 Company, 139 
 
XXXIX 
 
 Table of Gases Cited. 
 
 Shand v. Du Buisson, 205, 346, 
 
 347 
 Sharp, Ex parte, 291 
 
 — v. Bailey, 190 
 Shaw v. Benson, 118 
 
 — v. Holland & Neal, 54, 215 
 
 — v. Simmons, 118 
 Shed v. Brett, 339 
 
 Sheffield v. London Joint Stock 
 
 Bank, 367 
 Sheil v. Britt, 167 
 Sheldon v. Horton, 172, 188 
 
 — v. Parker, 150, 151 
 Shellard, Ex parte, 396 
 Shelton v. Braithwaite, 178, 186 
 Shepherd v. Harrison, 344 
 Sherrington v, Jermyn, 247 
 Sherry, Re, 257 
 
 Shields' Estate, 3 
 Shillito v. Theed, 119 
 Shute v. Bobins, 154 
 Shuttlewortb i>. Stephens, 20 
 Sibree v. Tripp, 228, 307, 358, 359 
 Sichel v. Boreh, 59 
 Siffkin v. Walker, 76 
 Siggers v. Lewis, 173, 212 
 Sigourney v. Lloyd, 133 
 Simmonds v. Taylor, 297 
 Simmons v. London Joint Stock 
 
 Bank, 363 
 Simon v. Cridland, 96 
 Simpson v. Henning, 312 
 
 — «. Vaughan, 330 
 Simson v. Ingham, 293 
 Sinclair v. Brougham, 3, 72, 239 
 Skilbeck *. Garbett, 177 
 Sleigh v. Sleigh, 102, 190, 225 
 Sloman v. Oox, 258 
 
 Smart, Ex parte, 345, 350 
 
 — v. Nokes, 402 
 
 Smith v. Bellamy, 19, 170, 190 
 
 — v. Braine, 110 
 
 — v. Brown, 207 
 
 — v. Chester, 210 
 
 — v. Clarke, 28 
 
 — v. Gordon, 243 
 
 — v. Johnson, 73, 80 
 
 — v. Jones, 287 
 
 — . v. Kendall, 39 " 
 
 — v. King, 71 
 
 — v. M'Clure, 29 
 
 — v. Marsack, 69, 210 " 
 
 — v. Mercer (1815), 237 
 
 Smith v. Mercer (1867), 193, 357, 
 358 
 
 — v. Mullett, 183 
 
 — v. Mundy, 60 
 
 — v. N. S. Wales Bank, 157, 
 
 158, 174 
 
 — v. Nightingale, 31 
 
 — v. Trosser, 54, 57, 328 
 
 — v. Sheppard, 230 
 
 — v. Smith, 93 
 
 — v. Union Bank, 6, 123, 240, 
 
 206, 297, 300 
 
 — v. Vertue, 51, S3, 201, 202, 
 
 209 
 Snee v. Prescott, 132 
 Snowball, Ex parte, 105 
 Soares v. Glyn, 22, 131 
 Society Anonyme Beige v. Anglo- 
 Belgian Agency, 73 
 Socj6t6 Anonyme des Hotels v. 
 
 Hawker, 116 
 Societe Ooloniale v. London and 
 
 Brazilian Bank, 207, 292 
 Soci6t6 des Hotels Eeunis v. 
 
 Hawker, 278 
 Soci6t6 Generale v. Met. Bank, 
 
 102, 248, 270, 271 
 Soci6t6 G6nerale de Paris v. 
 
 Walker, 377 
 Solarte v. Palmer, 176, 179 
 Solly v. Hinde, 114 
 Somerville v. Aaronson, 326 
 Sottomayor v. De Barros, 69 
 Southall v. Bigg, 94, 258 
 Soward v. Palmer, 152, 257 
 Speyer Bros', v. Inland Bevenuo, 
 
 16, 399 
 Spindler v. Grellett, 314 
 Sprot v. Matthews, 53 
 Stacey & Co. v. Wallis, 46, 411 
 Stafford v. Gates, 178 
 Stagg v. Elliott, 87 
 Stagg & Mantle v. Brodrick, 216 
 Stamford Banking Co. v. Smith, 
 
 341, 342 
 Standard Manufacturing Co., Re, 
 
 356 
 Stannard, Ex parte, 100 
 Stanton v. Blossom, 177 
 Starey v. Barnes, 146 
 Starkey v. Bank of England, 89. 
 
 91 
 Startup v. Macdonald, 166, 201 
 
Table of Cases Cited. 
 
 IXXUl 
 
 Steele v. M'Kinlay, 44, 45, 47, 49, 
 66, 213, 214, 215, 216, 
 217, 226 
 
 — v. Stuart, 344 
 
 Stein v, Yglesias, 137 
 Stephens, Ex parte, 204, 349 
 Sterling v. Bose, 96 
 Stevenson v. Brown, 310 
 Stewart v. Kennett, 176 
 Stocken v. Collin, 177 
 Stockman v. Parr, 181 
 Stoessiger v. South Bast. Eailway 
 
 Company, 56 
 Stone, Ex parte, 412 
 
 — v. Metcalfe, 53, 330 
 Stones v. Butt, 144 
 Storm v. Stirling, 310 
 Story v. Batten, 26.3 
 Stott v. Fairlamb, 66, 94 
 Straker v. Graham, 154, 155, 174 
 Stratton v. Matthews, 225 
 Streeter v. Fort Bank, 178 
 Strong v. Foster, 113, 234 
 Studdy v. Beesty, 186, 187 
 Sturdy v. Henderson 42 
 Sturtevant v. Ford, 113, 137 
 Suffell v. Bank of England, 248, 
 
 249, 250; 309 
 Summers v. City Bank, 208 
 Suae v. Pompe, 30, 64, 213, 219, 
 
 220, 221, 329 
 Sutton, Ex parte, 
 
 — v. Toomer, 248, 250, 402 
 Swan, Ex parte, 102, 136, 137, 264, 
 
 265 
 
 — v. North British Australa- 
 
 sian Company, 54, 121, 
 
 319, 377 
 Sweeney v. Easter, 133, 134 
 Sweeting v. Hake, 244, 402 
 Swift v. Tyson, 94 
 Swinyard v. Bowles, 193 
 Swire v. Redman, 254 
 Symons v . May, 279 
 
 T. 
 
 Talbot v. Von Boris, 62, 104, 105, 
 
 110, 111 
 Tatam v. Haslar, 109, 110, 111 
 
 Tate v. Hilbert, 151, 290 
 Tatum v . Catomore, 251 
 Taylor, Ex parte, 234 
 
 — v. Curry, 67 
 
 — v. Dobbins, 322 
 
 — v. Jones, 189 
 Temple v. Pullen, 54 
 Terry v. Parker, 172 
 Thackray v. Blackett, 187, 191, 268 
 Thairlwall v. Great Northern 
 
 Eailway, 60, 283, 361, 374 
 Thicknesse v. Bromilow, 79, 213 
 Thiedman v. Goldsmidt, 100 
 Thomas v. Fentbn, 229 
 Thompson v. Clubley, 16, 113 
 
 — v. Giles, 100, 148, 150 
 
 — v. Morgan, 360 
 Thomson v. Clydesdale Bank, 101 
 
 — v. Simpson, 347 
 Thorne v. Smith, 312 
 Thornton v. Maynard, 144, 233 
 Thorpe v. Coombe, 338 
 Tidmarsh v. Grover, 249 
 Timmins v. Gibbins, 223 
 Tondeur, Ex parte, 158, 208 
 Tooke v. Hollingworth, 345 
 Tootell, Ex parte, 35 
 
 Torrance v. Bank of British North 
 
 America, 253, 258, 344 
 Town Advance Co. v. Provincial 
 
 Bank of Ireland, 24 
 Town© v. Bice, 310 
 Treacher v. Hinton, 202 
 Treuttel v. Barandon, 133, 134 
 Triggs v. Newnham, 165 
 Trimby v. Vignier, 276 
 Trueman v. Loder, 76, 77 
 Turner v. Hayden, 152, 202 
 
 — v. Leech, 177, 178, 189 
 
 — v. Samson, 172, 191 
 
 — v. Stones, 193, 223 
 Turquand, Ex parte, 329 
 Twibell v. London Suburban 
 
 Bank, 209, 289 
 Twogood, Ex parte, 63, 100 
 Twycross v. Dreyfus, 368 
 Tyler v. Maxwell, 70, 120 
 
 c. 
 
XXXIV. 
 
 Table op Cases Cited, 
 
 U, 
 
 Ulster Bank v. Synnott, 88, 294 
 Union Bank of Canada v. Oole, 
 204, 206 
 
 — v. Willis, 168 
 United States v. Spalding, 247 
 
 — v. White, 22 
 Usher v. Dauncey, 55, 289 
 Utter v. Bich, 318 
 
 Vagiiano v. Bank of England, 23, 
 
 24, 25 
 Vagliano's Case, 
 Vance v. Lowther, 248, 250 
 Vander Donckt v. Thellusson, 314 
 Van Wart v, Woolley, 223 
 Vaughan p. Halliday, 205, 348, 
 
 350 
 Veal v. Veal, 151 
 Venables v. Baring Brothers, 367 
 Vernon v. Hankey, 291 
 Viale v. Michael, 181, 396 
 Viani & Co. v. Gunn & Co., 332 
 Vincent v. Horlock, 76, 131 
 Vinden v. Hughes, 24 
 
 W. 
 
 Wackerbath, Ex parte, 259 
 Wain i>. Bailey, 203, 268 
 Walker, Ex parte, 146 
 Walker, Re, 256 
 
 — v. Barnes, 219 
 
 — v. Hamilton, 208 
 
 — v. Macdonald, 28, 128, 
 
 165, 230 
 
 -- v. Manchester & Liver- 
 pool District Bank, 
 293 
 
 — f v. New York State Bank, 
 161 
 
 — v. Stetson, 152, 166 
 Wallace v. Agry, 155 
 
 — v. Hardacre, 149 
 Walmesley v. Child, 267 
 Walter v. Cubley, 249 
 
 Walter v. James, 229 
 Walton v. Hastings, 248 
 
 — v. Mascall, 174, 193, 201, 
 
 209,, 314, 315 
 
 Ward v. Evans, 223 
 
 — v. Morrison, 222 
 
 — v. National Bank of New 
 
 Zealand, 256 
 Waring, Ex parte, 348, 349 
 Warren v. Haigh, 137 
 Warriner v. Bogers, 150 
 Warrington v. Early, 29, 248 
 Warwick v. Nairn, 115 
 
 — . v. Eogers, 228, 245 
 Wasserberg, Be, 151 
 Watervliet Bank v. White, 129 
 Watkins v. Eigg, 338 
 
 — v. Maule, 123 
 
 — v. Wake, 361 
 Watson v. Evans, 23, 127, 128 
 
 — v. Bussell, 62, 64, 97, 104, 
 
 105, 112, 115 
 
 — v. Tarpley, 161 
 Watts v. Jefferyes, 148 
 Wauthier v. Wilson, 69, 71, 311 
 Way v. Bassett, 338 
 
 Webb v. Eairmaner, 42 
 
 — v. Heme Bay Commis- 
 
 sioners, 371 
 Webber v. Maddocks, 247 
 Webster, Ex parte, 252 
 
 — v. British Empire Co., 
 
 201, 222 
 
 — v. Kirk; 338 
 Wedlake v. Hurley, 133, 134 
 Wegersloffe v. Keene, 51 
 Wegg-Prosser v. Evans, 312, 356 
 Wells v. Hopkins, 114 
 
 Weld S. M. v. Fruhling & 
 
 Goschen, 74 
 West London Bank v. Kitson, 47. 
 
 89 
 Westropp v. Solomon, 380 
 Wharton v. Wright, 181 
 Whatley v. Tricker, 243 
 Wheatley v. Smithers, 80 
 Wheeler v. Warner, 338 
 
 — v. Young, 286 
 Whistler v. Foster, 104, 116, 123, 
 
 124 
 Whitaker, Me, 59, 61, 63, 70, 93, 
 113, 114, 150, 151 
 
Table of Cases Cited. 
 
 xxxv 
 
 Whitaker v. Bank of England, 
 
 165, 292 
 White, Ex parte, 247 
 
 — v. Bluett, 93 
 
 — v. Central National Bank, 
 
 211, 238' 
 
 — v. Heylman, 28, 116 
 
 — v. North, 306, 307 
 Whitehead v. Walker, 137, 140, 
 
 161, 195, 212, 336, 338 
 Wienholt v. Spitta, 116 
 Wiffen v. Eoberts, 40, 163 
 Wild v. Tucker, 93 
 Wilde v. Keep, 77 
 Wilders v. Stevens, 141 
 Wilkins v. Dawes, 173 
 
 — v. Jadis, 165, 167 
 Wilkinson v. Johnson, 132, 237 
 
 — v. Simson, 229, 280 
 
 — v. Stoney, 83 
 
 — v. Unwin, 141, 215 
 Wilks v. Hornby, 102 
 Willans v. Ayers, 19, 220, 221 
 William Bwing & Oo. v. Dominion 
 
 Bank, 84 
 Williams, Deacon & Oo. v. Shad- 
 bolt, 133, 134, 135 
 
 — v. Bayley, 83 
 
 — v. Colonial Bank, 366, 
 
 378 
 
 — v. Evans, 352 
 
 — v. Germaine, 42, 261 
 
 — v. James, 143, 232 
 
 — v. Smith, 183 
 
 — v. Waring, 314 
 Williamson v. Johnson, 80, -245 
 Willison v. Patteson, 73, 74 
 Willis v. Bank of England, 106, 
 
 309, 364 
 
 — v. Barrett, 22, 128 
 
 — v. Ereeman, 149 
 Wills v. Nott, 403 
 
 Wilmot v. Williams, 166, 201 
 Wilson v. Barthrop, 76 
 
 — v. Holmes, 132, 133, 134 
 Windham Bank v. Morton, 169, 
 
 170 
 Wirth v. Austin, 172, 191 
 Wise v. Charlton, 310 
 Wiseman v. Easton, 79 
 
 Witte v. Williams, 18 
 Wood v. Connop, 145 
 
 — v. De Mattes, 146, 328 
 
 — v. Lewis, 70 
 Woodbridge v. Spooner, 66 
 Woodcock v. Houldsworth, 177 
 Woodland v. Pear, 223, 292 
 Woodrufi v. Moore, 336, 338 
 Woods v. Dean, 188 
 Woodward v. Pell, 136, 203, 228, 
 
 332, 234 
 Wookey v. Pole, 22, 121, 375 
 Woolf v. Hamilton, 118 
 Woolsey v. Crawford, 220 
 Worley v. Harrison, 30 
 Worthington v. Wigley, 356 
 Wright v . Hickling, 257 
 
 — v. Inshaw, 247, 248 
 
 — v. Maidstone, 268 
 
 — v. Shawcross, 183, 185 
 Wulfi v. Jay, 256 
 
 Wyld, Ex parte, 264, 265 
 Wynne v. Jackson, 275, 276 
 
 — v, Baikes, 50 
 
 Yates, Ex parte, 126., 214 
 
 — v. Bell, 205 
 
 — v. Dalton, 80 
 
 — v. Hoppe, 225 
 
 — v. Nash, 23 
 
 Yglesias v. Eiver Plate Bank, 
 244, 252 
 
 Yorkshire Banking Co. v. Beat- 
 son, 77, 78, 79 
 
 Young v. Austen, 16, 65 
 
 — v. Cole, 380 
 
 — v. Glover, 48, 126, 215 
 
 — v. Gordon, 96 
 
 — v. Grote, 235 
 
 Z. 
 
 Zinc Corporation, Ltd. v. Hirsch, 
 74 
 
 c2 
 
( xxxvii ) 
 
 LIST OF ABBREVIATIONS. 
 
 Chitty— Chitty on Bills of Exchange. 11th edition. 1878. 
 
 Daniel — Daniel on Negotiable Instruments. New York. 4th 
 edition. 1891. 
 
 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. 4th edition. 1875. 
 
 Pothier — Pothier, Traite du Contrat de Change. Paris. 1847. 
 
 Story — Story's Commentary on the Law of Bills of Exchange. 
 4th edition. 1860. 
 
( xxxix ) 
 
 INTRODUCTION TO THIRD EDITION. 
 
 Soon after the publication of the Second Edition of Plan of the 
 this 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 deduc- 
 tions 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 
 
xl Introduction to Third Edition. 
 
 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 the part of the Courts to 
 construe the Act as declaratory; and it may be useful to 
 the profession to be referred from the abstract propo- 
 sitions 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-sufficient 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." 
 Codifioation. The Bills of Exchange Act, 1882, was the first enact - 
 , ment codifying any branch of the Common Law which 
 
 found its way into the Statute Book. lb has now been 
 followed by the Partnership Act, 1890, which was 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 
 
 * For an account of that Act, see the Introduction to Pollock on 
 Partnership. And see also the Sale of Goods Act, 1893, and the 
 Marine Insurance Act, 1906, which I subsequently drafted. 
 
Introduction to Third Edition. xli 
 
 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 substance, of the law creates no opposition, and gives 
 very 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 complete- 
 ness. 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 enact- 
 ments. 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 un- 
 important until the time of Lord Mansfield. The 
 general principles of the law were then settled, and 
 subsequent 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 
 
xlii Introduction To Third Edition. 
 
 Pariiamen- be stated with a (probably) or a (perhaps) . Some two 
 ofTct. 0ry y«ars 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. Sir John 
 Hollams, the well-known commercial lawyer, who was 
 present, pointed out the advantages of a Code to the 
 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 Herschell 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 Aberdeen, 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 . 
 
 * 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 Herschell (afterwards Lord. 
 Herschell), Q.C.; Sir John Lubbock (afterwards Lord Avebury); 
 Mr. Asher, Q.C. ; Mr. Cohen, Q.C. ; Mr. Reid, CJ.C. (afterwards Lord 
 Loreburn); Mr. Whitley, Mr. T. C. Baring, Mr. R. B. Martin;. 
 Mr. Orr-Ewing, Mr. Jackson (afterwards Lord Allerton), and Sir 
 Charles Mills (afterwards Lord Hillingdon). 
 
Introduction to Third Edition. xliii. 
 
 The Committee thereupon resolved to apply the Bill to 
 Scotland, and Sheriff Dove-Wilson undertook the draft- 
 ing 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 amendments were pressed on 
 which 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 BramweH'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 principles of the laws of bills, 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. 
 
 * The Committee included the Lord Chancellor (Selborne), Lord 
 Bramwell, Lord Fitzgerald, Lord Balfour of Burleigh, and Lord 
 Wolverton. 
 
xliv Introduction to Third Edition. 
 
 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 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 
 
 * In the present Edition no attempt has been made to keep th'e 
 American oases up to date. They are now so numerous, and conflict- 
 ing, 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 Instruments, and Mr. Crawford's 
 edition of the New York Negotiable Instruments Act of 1897. 
 
Introduction to Third Edition. xlv 
 
 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 
 cosmopolitan of all contracts. Mr. Justice Story, in his 
 judgment in Swift v. Tyson (16 Peters, 1), gives forcible 
 expression to the principle. He says, " The law respecting 
 negotiable instruments may be truly declared, iu 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 Komee, alia Athenis, alia nunc, 
 alia post hac, sed et apud omnes gentes et omni tempore 
 una eademque lex obtinebit." Lord Blackburn, in a 
 Scotch appeal concerning a cheque, 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 Sootoh 
 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 
 binding 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 
 
 * McLean v. Clydesdale Bank (1883), 9 App. Cas. at p. 105. 
 t See per Cockburn, C.J., in Scaramanga v. Stamp (1880), 5> 
 C. P. D. at p. 303, 0. A. 
 
xlvi Introduction to Third Edition. 
 
 deduction from the general principles of common law and 
 tho 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 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 Com- 
 mercial 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 substantially 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 provisions seem to be 
 borrowed from the English Act. I believe the Hungarian 
 
Introduction to Third Edition. xlvii 
 
 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. Dawber, 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 
 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 German 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 be the model to which 
 the other Continental states (with the exception of France) 
 are now assimilating their laws. Seoondly, it is an inter- 
 national 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 
 
xlviii Introduction to Thied Edition. 
 
 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 repro- 
 duces the English law as it stood in 1881. In a work 
 like the present, it is thought 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 
 Bil]s 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 Con- 
 tinental states have re-cast their laws relating to negotiable, 
 instruments. A new Commercial Code has been enacted 
 for the Netherlands, and an official translation of the 
 part relating to negotiable instruments bias been pub- 
 lished in England. [See Commercial, No. 30, of 1880, 
 
 * Aa to further developments on these lines, see Preface to this 
 (the 8th) edition. 
 
Introduction to Third Edition. xlix 
 
 C. 2609.] M. Nouguier, in a supplementary chapter to 
 his work on Bills (Des Lettres de Change, 1875), com- 
 pares the laws of the chief commercial nations with the 
 French Code. The Comite de Legislation ^trangere, 
 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. Masse's " Droit Commercial et des Gens" is a valu- 
 able 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 Ex- 
 change, and Parsons on Notes and Bills, are also standard 
 American works. Thomson on Bills of Exchange is 
 the standard book on Scotch law, which, it must be 
 remembered, differs materially from the English.. 
 
 Tho origin and history of bills of exchange and other Origin and 
 negotiable instruments are traced by Lord Chief Justice anVnotes. 
 Cockburn in his judgment in Goodwin v. Robarts* 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 Venetians 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 
 ' Specimens of a Digest of the Law of Bills of Exchange,' 
 that Richard Malynes, a London merchant, who pub- 
 lished a work called the Lex Mercatoria, in 1622, and 
 
 * Goodwin v. Robarts (1875), L. R. 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. 
 
 g. d 
 
1 Introduction to Third Edition. 
 
 ; > u ■ ' • 
 
 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 tq as a 
 means of conveying money put 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, sbows 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 
 and use of bills of exchange in England,' as indeed it 
 was everywhere else, : seems to have been founded on 
 the mere practice of mercbants, and gradually to have 
 acquired the force of a custom.' Witb the development 
 of English commerce the use of these most convenient 
 instruments of commercial traffic would of course increase, 
 yet, according to Mr. Chitty, the earliest case on the 
 subject to be found in the English books is that of 
 Martin v. Boure (Cro. Jac. 6), in the first James I. Up 
 to this time, the 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 tbe sixteenth or the 
 'commencement of the seventeenth century, the practice 
 of inakitig bills payable to order, andtransf erring them by 
 indorsement, took its rise. Hartmann, in a very learned 
 work on Bills of Exchange, recently published in Ger- 
 many, states that the first known mention of the indorse- 
 ment of these instruments occurs in the Neapolitan 
 
Intkoduction to Third Edition. li 
 
 Pragmatica in 1607 Savary, cited by Mons. Nouguicr, 
 in his work ' Des Lettres de Change,' had assigned to it 
 a later date, namely, 1620. From its obvious conve- 
 nience 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 after- 
 wards 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 
 uscm et consuetudinem mercatorum." In the time of 
 Chief Justice. Holt, a controversy arose between the 
 Courts and the merchants, as to whether the customary 
 incidents of negotiability were to be recognized in the 
 case of promissory notes. The dispute was settled by 
 the stat. 3 & 4 Anne, c. 9, which vindicated the custom 
 -and confirmed the negotiability of notes. Again, in 
 1873, tbo 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. Robarts, where it was 
 determined that foreign scrip might be rendered nego- 
 tiable by custom, so as to pass with a good title, and 
 free from all equities to a bond 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 bo material in determining 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 
 
 d2 
 
Hi Introduction to Third Edition. 
 
 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* con- 
 nected 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. This accounts for the very 
 remarkable 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 men- 
 tioned 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 theory . • . , . , , ' . 
 
 of hills com- instructive. A, reierence to Marius treatise on Bills of 
 
 pared. *»r» 
 
Introduction to Third Edition. liii 
 
 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 stands, 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 
 from the original. Tbe English theory may be 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 1 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.* English 
 
 * This passage was written in 1878, when the first edition was pub- 
 lished. The theory it advances is independently confirmed by the 
 excellent Introduction to the Portuguese Commercial Code in the 
 French edition, published by the " Comite de Legislation Etrangere." 
 See p. xxix., where it is said, " La lettre de change, qui, a son origine, 
 n'fitait destinee qu'a effectuer un payement de place en place, en 
 evitant les dangers de la circulation du numeraire, s'est considerable- 
 ment modifiee et perfectionnee. Aujourd'hui elle remplace le 
 
liy Introduction to Third Edition. 
 
 j»-f.Mii/' nttn ' > Wh'i ••■«'<■ r. ,f| 
 
 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 ho longer necessary to 
 express on a bill that value has been' given, for the law 
 raises' a presumption to that effect. In France the nature 
 of the value must be expressed, and a false statement of 
 value avoids the bill in 'the hands of all parties with 
 notice. In 'England a bill' may how be drawn and pay- 
 able in the same place (formerly it was otherwise: see the 
 definition of bill in Comyns' Digest*). In 'France the 
 place where a bill is drawn must be so far distant from 
 the place where it is p'ayable, that there may be a possible 
 rate of exchange between the two. A false statement of 
 places, so as to evade this rule, avoids' the bill in the 
 hands of a holder with notice. As French lawyers put 
 it, a bill of exchange necessarily presupposes a contract 
 of exchange.f In England, since 1765, a bill may be 
 drawn payable to bearer, though formerly it was other- 
 wise. + In 'France it must be payable to order; if it 
 
 numeraire, et constitue entre commercants, sinon l'unique moyen du 
 payement, du moins le mode de liberation le plus usuel. Nous sommes 
 loin de 1'ep'oque ou elle n'etait tloiisideree que eomme un simple in^ 
 strument dai contrat de change et ou l'on exigeait que le tire en eut 
 prealablement 'recu la contrevaleur. . . La lettre de change est 
 derertiefidansle nouveau code un simple contra Uteris', independant, 
 valable par. le seul fait des stipulations gu'il renferme et des signatures 
 qu'il porte."' <• -.-■•■• M M •. . ..-it ...-•<'! 
 
 * " A bill of exchange is when a man takes money in one country or 
 city upon exchange, and draws a bill whereby he directs another 
 person'in another country or< ferity' to! pay somttoh to Alt or'iorder for 
 value received of B., and subscribes it." 
 
 t This rule was known as the rule of distantia looi. No distance was 
 fixed by the 'Code, and the -rule, therefore, was difficult to apply. See 
 N<ougvAer, §§ ! 93 — 105. Gradually the Erench Courts came to consider 
 ■this requirement of Art. 110, of the Code de Commerce as merely 
 directory, and now it is expressly abrogated by the Law of 7th June, 
 1894/ Italian Code, Art. ,251, negatives the, rule. See, ; however', 
 Netherlands Code, Arts. 100, 101; .Spanish" Code, Art. 249. 
 
 X See Stewart V. Ilbdges (1692), 12 Mod:' 36; 
 
Introduction to Third Edition. lv 
 
 were not so, it is clear that the rule requiring the con- 
 sideration to be expressed would be an absurdity. In 
 England a bill originally payable to order becomes pay- 
 able to bearer when indorsed in blank. In France an 
 indorsement in blank merely operates as a procuration. 
 An indorsement, to operate as a negotiation, must be an 
 indorsement to order, and must state the consideration; 
 in short, it must conform to the conditions of an original 
 draft. In England, if a bill be refused acceptance, a 
 right of action at once accrues to the holder. This is a 
 logical consequence of the currency theory. In France 
 no cause of action arises unless the bill is again dis- 
 honoured at maturity; the holder, in the meantime, is 
 only entitled to demand security from the drawer and 
 indorsers. In England a sharp distinction is drawn 
 between current and overdue bills. In France no such 
 distinction is drawn. In England no protest is required 
 in the case of an inland bill, notice of dishonour alone 
 being sufficient. In France every dishonoured bill must 
 be protested. Grave doubts may exist as to whether the 
 English or the French system is the soundest and most 
 beneficial to the mercantile community, but this is a 
 problem which it is beyond the province of a lawyer to 
 attempt to solve. 
 
 M.D.C. 
 
 ■January, 1883. 
 
BILLS OF EXCHANGE ACT, 1882. 
 
 45 & 46 Vict. c. 61. 
 
 An Act to codify the Law relating to Bills of 
 Exchange, Cheques, and Promissory Notes. 
 
 [18th August, 1882.]. 
 
 PART I. 
 
 Preliminary. 
 
 1. This Act may be cited as the Bills of short title. 
 Exchange Act, 1882. 
 
 The Bill as originally drafted applied only to England Local extent. 
 and Ireland. The clause excluding Scotland was struck 
 out in committee. The Act therefore applies to the whole 
 of the United Kingdom. Sect. 4 and sect. 83 (4) (inland 
 and foreign bills and notes), and the consequential 
 enactment, sect. 51 (2) (protest), apply also to the 
 Channel Islands and the Isle of Man.' The general rule 
 of construction is that an English Act does not bind 
 foreigners out of the jurisdiction (a), and of course an 
 English Act cannot bind foreign courts. As to the 
 effect to be given to foreign laws where they differ from 
 English law, see sect. 72, post. 
 
 The Bill as originally drafted was intended to reproduce Amendments 
 the then existing law as exactly as possible, but certain of law. 
 amendments of the law were introduced in committee. 
 
 (a) Jeferys v. Boosey (1854), 4 H. L. Ca. at pp. 935, 939; Ex- 
 parte Slain (1879), 12 Ch. D. 522; and note Embiricos v. Anglo- 
 Austrian Bank, (1904) 2 K. B. 870; affirmed 1 K. B. (1905) 677, 
 C. A., as to the local operation of sect. 24 concerning" the effect of a 
 foreign forged indorsement. 
 
 C. 1 
 
2 Bills op Exchange Act, 1882. 
 
 § 1. Provisions which alter the law are sect. 4 (2); sect. 7 (2) 
 
 (3); sect. 8 (1) and (3); sect. 12; sect. 14(1); sect. 15 
 
 sect. 18 (3); sect. 33; sect. 36 (3); sect. 39 (4) 
 sect. 41 (2); sect. 44 (2); sect. 49 (6); sect. 51 (2) 
 sect. 61; sect. 62; sect. 64; sect. 73; sect. 74; sects. 91 — 
 95;- sect. 100. 
 C f > A'r iCti0n is ky its title a codifying Act, and the rule for 
 
 its construction is thus stated by Lord Herschell: — "I 
 think tho proper course is, in the first instance, to examine 
 the language of the statute, and to ask what is its natural 
 meaning, uninfluenced by any considerations derived from 
 tho previous state of the law, and not to start with 
 inquiring how the law previously stood, and then, 
 assuming that it was probably intended to leave it 
 unaltered, to see if the words of the enactment will bear 
 an interpretation in conformity with this view. If a 
 statute intended to embody in a code, a particular branch 
 of the law is to be treated in this fashion, it appears to me 
 that its utility will be almost entirely destroyed, and the 
 very object with which it was enacted will be frustrated. 
 The purpose of such a statute surely was that on any 
 point specifically dealt with by it the law should be ascer- 
 tained by interpreting the language used, instead of, as 
 before, by roaming over a vast number of authorities in 
 order to discover what the. law was, extracting it by a 
 minute critical examination of the prior decisions, depen- 
 dent upon a knowledge of the exact effect even of an 
 obsolete proceeding, such as a demurrer to evidence. I 
 am, of course, far from asserting that resort may never be 
 had to the previous state of the law for the purpose of 
 aiding in the construction of the provisions of the code. 
 If, for example, a provision be of doubtful import, such 
 resort would be perfectly legitimate. Or, again, if in a 
 code of the law of negotiable instruments, words be found 
 which have previously acquired a technical meaning, or 
 been used in a sense other than their ordinary one, in 
 relation to such instruments, the same interpretation 
 might Well be put upon them in the code. I give these 
 as examples merely; they, of course, do not exhaust the 
 category " (b). 
 
 (b) Bank of England y. Vagliana, (1891) A. 0. at p. 144, decided 
 on sect. 7 (3), as to fictitious payee; cf. Bristol Tramways Co. v. Fiat 
 Motors, Ltd., (1910) 2 K. B. at p. 306, C. A. (Sale of Goods Act). 
 
Preliminary. 3 
 
 This Act deals only with bills, notes, and cheques. It § 1. 
 has no application to other negotiable instruments, such ^ — jttt — 
 as negotiable bonds or scrip. As to such instruments, scrip, bonds, 
 see Chapter on Negotiable Securities for Money, post, &0 - 
 pp. 362—380. 
 
 As to bills and notes made by a corporation under seal, 
 see sect. 91 (2), post. The enactments which regulate 
 bank notes are expressly saved by sect. 97 (3) (c). post. 
 
 2. In this Act, unless the context otherwise interpreta- 
 tion of terms. 
 
 requires, — 
 
 " Acceptance" means an acceptance completed Acceptance, 
 by delivery or notification. 
 
 As to delivery or notification to complete an acceptance, 
 see sect. 21, post ; and as to the requisites of a valid 
 acceptance, see sect. 17, post ; as to acceptance for honour, 
 see sect. 65, post. 
 
 " Action " includes counter-claim and set-off. Action. 
 
 See sect. 30 (presumption of value); sect. 57 (damages), 
 and sect. 70 (lost bill), which require this definition. For 
 a full definition of " action " for High Court purposes, see 
 sect. 100 of the Judicature Act, 1873 (36 & 37 Vict. 
 c. 66). 
 
 " Banker" includes a body of persons, whether Banker, 
 incorporated or not, who carry on the business 
 of banking (<?). 
 
 See sect. 60, post, as to forged indorsements on demand 
 drafts, and sects. 73 to 83 as to cheques. Compare the 
 definition of " banker," given by sect. 29 of the Stamp 
 Act, 1891, post, p. 396. As to the relations of banker and 
 
 (o) As to who is or 13 not a banker, see Ex parte Ooe (1861), 3 
 Be G. E\ & J. 335; Halifax Union v. Wheelwright (1875), L. B. 
 10 Ex. at p. 193; Re Shields Estate (1901), 1 Ir. B. (Ch.) 172; 
 and as to U.S., Morse on Banking, §§ 2-5; as to a building society- 
 carrying on an ultra vires banking business, see Sinclair v. Brougham, 
 <191« A. C. 398, H. L. See, farther, note, post, p. 75. 
 
 1 (2) 
 
* Bills of Exchange Act, 1882. 
 
 § 2. customer, see po&t,,p. 291. By sect. 1 of the Companies, 
 ~ (Consolidation) Act, 1908 (8 Edw. 7, c. 69), a banking 
 partnership may not consist of more. than ten persons 
 Unless' it is registered 1 under that Act, or is formed in 
 pursuance of some other Aot or of letters patent, and cf . 
 Sched . VI . Part 2 of that Act . 
 
 By sect. 2 of the Money Lenders Act, 1911 (1 & 2 
 Geo. 5, c. 38), a money-lender is prohibited from regis- 
 tering under any name including the word " bank," or 
 implying that he carries on a banking business. 
 
 For a limited power to industrial societies to carry on 
 banking business, see sect. 19 and Sched. III. of the In- 
 dustrial and Provident Societies Act, 1893 (56 & 57 Vict, 
 c. 39), and note sect. 12 as to bills, notes and cheques. 
 
 Bankrupt. " Bankrupt " includes any person whose estate 
 
 is vested in a trustee or assignee under the 
 law for the time being in force relating to 
 bankruptcy. 
 
 This definition includes a debtor whose estate is vested 
 in a trustee under sect.- 16 of the Bankruptcy Act, 1914 
 (4 & 5 Geo. 5, c. 59), as well as a bankrupt properly so- 
 called. It does not appear to include a debtor against 
 whom merely a receiving order has been made. See- 
 sects. 41 (d), 49 (10) and 51 (5), which require this defi- 
 nition. As to Scotland, see the Bankruptcy (Scotland) 
 Act, 1913, sects, 5, 97 and 137 
 
 Bearer. " Bearer " means the person in possession of a 
 
 bill or note which is payable to bearer. 
 
 The possessor of. a bill or note payable to order is not 
 .technically the " bearer " of it (<J)". As to the rights of a 
 person who has given value for a bill payable to the order 
 of some other person, see sect. 31 (4), post . By sect. 8 (3), 
 a bill is payable to bearer which is expressed to be so 
 pay-able, or on which the only or last" indorsement is an 
 indorsement in blank/ See the definition of "holder," 
 post, p. 5. 
 
 (d) Cf. Day v. LonghuJst (1893), 62 L. J. Oh. 334. 
 
Preliminary. 6 
 
 "Bill" means bill of exchange, and "note" §2. 
 means promissory note. Bill and note. 
 
 For the operative definition of these terms, see 
 sects. 3 and 83; and see "cheque" defined by sect. 73, 
 post. 
 
 "Delivery " means transfer of possession, actual Delivery. 
 or constructive, from one person to another. 
 
 This definition is adopted by § 2 of the New York 
 Negotiable Instruments Law o£ 1897. Sect. 62 of the 
 Sale of Goods Act, 1893, .defines delivery as " voluntary 
 transfer of possession from one person to another " (e). 
 
 A person is said to have constructive possession of a 
 thing when it is in the actual possession of his servant 
 or agent on his behalf; therefore delivery may be 
 effected without change of actual possession in three cases, 
 namely: (1) A bill is held by 0. on his own account; 
 he subsequently holds it as agent for D.; (2) A bill is 
 held by C.'s agent, who subsequently attorns to D., and 
 holds it as his agent; (3) A bill is held by D. as agent 
 for C . ; he subsequently holds it on his own account (/) . 
 As to the necessity, for delivery to complete the contracts 
 on a bill or note, see sect. 21, post, also sect. 84 as to notes. 
 A delivery by -mistake may be inoperative (g). 
 
 "Holder" means the payee or indorsee of a Holder, 
 bill or note who is in possession of it, or the 
 bearer thereof (h). 
 
 See " holder for value " defined by sect. 27 (2) and (3), 
 and " holder in due course " by sect. 29, post. 
 
 The term " holder " includes alike the payee, the i 
 
 (e) 56 & 57 Vict. c. 71; and see Pollooh $ Wright on Possession, 
 pp. 43, 46. 
 
 (/) See, e.g., Field v. Carr (1828), 2 M. & P. 46; Bosanquet v.< 
 Forster (1841), 9 C. & P. 659; Belcher v. Campbell (1845), 8 Q. B. 
 1. Cf. also Ancom v. Marks (1862), 31 L. J. Ex. 163, ratification, 
 of delivery. 
 
 (g) Ex parte Cote (1873), 9 Oh. App. at p. 32. 
 
 (h) Cf. Ahrokerri Mines v. Economic Bank, (1904) 2 K. B. at 
 p. -472; Walters v. Neary (1904), 21 T. L. R. 140, C. A. (unin- 
 dorsed bill transferred for value). 
 
6 . Bills of Exchange Act, 1882. 
 
 § 2. indorsee, and the bearer of a bill. It signifies the mer- 
 cantile owner of the instrument, who may or may not be 
 tho legal owner of it. Suppose C, the payee of a bill, 
 indorses it in blank and transmits it to D. for some 
 special purpose, e.g., discount or collection. As long as 
 D. retains possession, D., and not C, is the holder, and 
 he alone can negotiate it («"). 
 
 In the cases the term holder is used in different senses. 
 It is generally used to denote the lawful holder or holder 
 in due course. It then includes (a) the person to whom 
 a bill is by its terms payable, and whose title is good 
 against all the world; (b) the person to whom a bill is 
 by its terms payable, and who, as against third parties, 
 is entitled to enforce payment thereof, though, as between 
 himself and his transferor, he is a mere agent or bailee 
 with a defeasible title, e.g., an indorsee for collection. 
 But " holder " is also used to denote an unlawful holder, 
 that is, the person to whom a bill is by its terms payable, 
 whoso, possession is unlawful (e.g., the finder of a bill 
 indorsed in blank), but who nevertheless can give a valid 
 discharge) to a person who pays it in good faith, and also 
 a good title to a person who takes it before maturity in 
 good faith and for value: see sect. 38, post. The above 
 definition includes both classes of holders. An unlawful 
 holder must be distinguished from a mere wrongful 
 possessor, e.g., a person holding under a forged, indorse- 
 ment^ or a person who has stolen a bill payable to the 
 order of another (7c). Such person has no rights, and can 
 give none: see sect. 24, post. It is to be noted that 
 possession is an essential part of the definition (I). 
 
 The meaning of the expression " holder " in other 
 statutes must be judged by the context, and is not governed' 
 by this definition (m). 
 
 indorsement. " Indorsement " means an indorsement com- 
 pleted by delivery. 
 
 See sect. 21, post, as to delivery; and sect. 32, post, as 
 
 (i) Marston v. Allen (1841), 8 M. & W. at p. 504. 
 
 \k) Cf. Smith v. Union Bank (1875), L. K. 10 Q. B. at pp. 295, 296. 
 
 Q) Cf. Emmett v. Tottenham (1853), 8 Exch. 884; Ancona v. 
 Marks (1862), 31 L. J. Ex. 163. 
 
 (m) Nieholls v. Evans, (1914) 1 K. B. Ill, decided on 5 & 6 
 Will. 4, c. 42 (gaming). 
 
PfiELIMINARY. 
 
 to the requisites of a valid indorsement. " If, then," says § 2. 
 
 Alderson, B., "a transfer by indorsement, as we have — 
 
 before shown, consists in an indorsement (or writing the 
 name of the party transferring the bill on the bill), and a 
 delivery for the purpose of completing such transfer, it 
 will follow that the issue did not indorse involves both 
 these propositions " (»), An indorsement valid as against 
 the acceptor may be inoperative as between indorser and 
 indorsee, as, for example, where a bill is indorsed for the 
 purpose of the indorsee collecting it for the indorser, or 
 on joint account (o). 
 
 The term " indorse© " is used to denote not only the 
 person to whom a bill is specially indorsed, but also the 
 bearer of a bill indorsed in blank, i.e., any person who 
 makes title to a bill through an indorsement (p) . 
 
 The term " indorser " primarily denotes the holder of a 
 bill who indorses it, but it is also used to denote any person 
 who backs a bill with his signature, and thereby incurs the 
 liability of an indorser: see sect. 56, post. Under the 
 continental codes, such person would be spoken of as the 
 giver of an " aval." As to "avals," see note to sect. 56, 
 post. As to indorsement by way of receipt, and stamp 
 exemption, see post, pp. 29 and 408. 
 
 "Issue" means the first delivery of a bill or issue, 
 note, complete in form, to a person who 
 takes it as a holder (q). 
 
 See sects. 9 (3), 12, and 72 (1), which require this defi- 
 nition. For stamp purposes a bill is not deemed to be 
 issued till it has reached the hands of a holder for value (r) . 
 By sect. 31 a bill is " negotiated " when it is transferred 
 from one person to another in such manner as to constitute 
 the transferee the holder of the bill. As to incomplete 
 instruments, see sect. 20, post. 
 
 (n) Marston v. Allen (1841), 8 M. & W. at p. 504; of. Lloyd v. 
 Howard (1850), 15 Q. B. 995, at p. 999. 
 
 (o) Denton v. Peters (1870), L. B. 5 Q. B. 475. 
 
 (p) Barber v. Richards (1851), 6 Exeh. at p. 65. 
 
 (?) Cf. Glutton v. Attenborough, (1897) A. C. at p. 93, H. L. 
 
 (r) Downes v. Richardson (1822), 5 B. & Aid. 674; Scholfield v. 
 Earl of Londesborough, (1894) 2 Q. B. 660; see note to sect. 64 as 
 to alterations, -post, p. 247. 
 
Bills of Exchange Act, 1882. 
 
 §2. 
 
 ' Person. 
 Value. 
 
 Written. 
 
 " Person" includes a body of persons, whether 
 
 incorporated or not. 
 "Value" means valuable consideration. 
 
 For the operative definition, see sect. 27, post. 
 
 "Written" includes printed, and "writing" 
 includes print. 
 
 This definition is inclusive. For a somewhat wider 
 definition, see sect. 20 of the Interpretation Act, 1889 
 (52 '& 53 Vict. c. 63). As to " signature," see sect. 91, 
 post. 
 
 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. 
 
 These definitions, with the exception of the definition 
 of " bankrupt," are adopted b y § 2 of the New York 
 Negotiable Instruments Law of 1897, which, with or 
 without some small modifications, is now enacted in forty- 
 seven states or territories of the United States. 
 
Form and Interpretation. 
 
 §3. 
 
 PART 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. 
 3. (1) A bill of exchange is an unconditional Bill " f 
 
 j . . . , , , exchange 
 
 ■order m writing, addressed by one person to defined, 
 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 (s). 
 
 (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. 
 
 See "writing" defined, ante, p. 8. 
 
 A bill is sometimes called 1 a draft, and an accepted bill 
 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. 
 
 (s) Cf. New York Negotiable Instruments Law, § 210, which, 
 lowever, is confined to negotiable bills. 
 
10 
 
 Bills of Exchange Act, 1882. 
 
 §3. 
 
 Form of 
 words or 
 language. 
 
 Ambiguous 
 instrument. 
 
 See " bearer " defined by sect. 2, ante, p. 4. The foreign 
 codes for the most part provide in terms that a bill may 
 bo drawn by one person for the account of another, and 
 bills so drawn are recognised by sect. 65 (1) and sect. 
 68 (1), post. The person for whose account the bill is 
 drawn is spoken of in England as the " third account." 
 For example, a merchant in America may direct his agent 
 in England to draw on a correspondent in Paris for his. 
 (the principal's) account. 
 
 Comparing this definition with the wider definition of 
 " bill of exchange " in sect. 32 of the Stanip Act, 1891,. 
 post, p. 397, it appears that instruments may require to be 
 stamped as bills which do not possess the mercantile 
 incidents of bills as defined by this Act. An instrument, 
 invalid as a bill under the Act, may be valid as an agree- 
 ment if it conform with the requirements of the general 
 law as to agreements (t). 
 
 Under the Act, no special form of words is essential tcv 
 tho validity of a bill. Thus an order, sufficient in other 
 respects, running " Credit C. or order in cash," instead of 
 " Pay," is a valid bill (w). German Exchange* Law, 
 Art. 4, and Italian Code, Art. 251 (among others), require 
 the instrument to state in terms that it is a bill of ex- 
 change, and the continental codes generally do not allow 
 a bill originally to be drawn payable to bearer, though 
 they do not prohibit the indorsement in blank of a bill 
 drawn payable to drawer's order. 
 
 A bill may be drawn in any language (x). 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 
 is doubtful whether it was intended for a bill or for a note, 
 the holder may treat it at his option as either (y) . 
 
 (0 See, e.g., Brice v. Bannister (1878), 3 Q. B. D. 569, C. A.; 
 Ramiltpn v. Spottiswoode (1849), 4 Exch. 200. 
 
 («) Ellison v. Collingridge (1850), 9 O. B. 570; of. Lovell v. Hill 
 (1838), 6 C. & P. 238; Story, § 33. 
 
 (*) See, e.g., Re Marseilles Co. (1885), 30 Oh. D. 598, where a bill 
 in French was treated as an English instrument. In India bills drawn 
 in the native language are called " Hundis," and native usages with 
 respect to them are expressly saved by the Indian Act. See Chalmers, 
 and Caspersz' Indian Negotiable Instruments Act, 1881, ed. 3, p. 31. 
 
 (SO Edis v. Bury (1827), 6 B. & C. 433; Lloyd v. Oliver (1852), 
 18 Q. B. 471; Fielder v. Marshall (1861), 30 L. J. C. P. 158; cf. Allen 
 v. Mawson (1814), 4 Camp. 115; New York Negotiable Instrumenta 
 Law, § 36, and Indian Negotiable Instruments Act, s. 17. 
 
Form and Interpretation. 11 
 
 The Act requires a bill to be signed by the drawer. The § 3. 
 signature may be added at any time (see sects. 18 and 
 
 20); but until it is there the instrument is inchoate and S^ * 
 without effect. Thus A. draws a bill on B., but does not 
 sign it. B. accepts, and the instrument is transferred for 
 valuo to C . The instrument is neither a bill nor a note (2) ; 
 but if the instrument were in the drawer's hands so thai 
 he could add his signature at pleasure, it might be a 
 security for the payment of money within sect. 75 of the 
 Larceny Act, 1861 (24 & 25 Vict, c, 96) (a). 
 
 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 Money and 
 tender. Therefore, an order requiring payment " in good money only. 
 East India bonds " (b) is not a bill of exchange. In a 
 case in 1815 an order to pay " in cash or Bank oi' 
 England notes " was held invalid (e) ; but now by the 
 Bank of England Act, 1833 (3 & 4 Will. 4, c. 98), s. 5, 
 the notes of that bank are made legal tender in England, 
 except by the bank itself. Currency notes issued by the 
 Treasury are legal tender throughout the United Kingdom, 
 see the Currency and Bank Notes Act, 1914 (4 & 5 Geo. 5, 
 c. 14). As to Scottish and Irish bank notes, see sect. 4 
 of that Act. As to legal tender in coin, see the Coinage 
 Act, 1870 (33 Vict. c. 10), ss. 4—6 (#). Again, an order 
 requiring the drawee to pay a certain sum of money and 
 deliver up a wharf to the payee (e), or requiring him to 
 pay a certain sum and take up a note for the drawer, is not 
 a bill (/) . So, too, an order to deliver to bearer on demand 
 
 (z) M'Call v. Taylor (1865), 34 L. J. O. P. 365; of. Goldsmid v. 
 Hampton (1858), 5 0. B. N. S. 94; 27 L. J. O. P. 286; Ex parte 
 Hayward, (1871), L. R. 6 Ch. 546. 
 
 (a) £. v. Bowerman, (1891) 1 Q. B. 112; and it may be evidence 
 of a debt which the drawer's executors can enforce, Lawson's Exors. 
 v. Watson (1907), 9 P. 1353 (Scotland). See now the Larceny Act, 
 1916, s. 46. 
 
 (b) Buller, N. P. p. 268. 
 
 (c) Ex parte Imeson (1815), 2 Rose. 225; cf. Story, § 43; New 
 York Negotiable Instruments Law, § 20 (2) and § 25 (5), and cases 
 cited in Crawford's edition. 
 
 (d) Bronze coins are legal tender to any amount not exceeding one 
 shilling, silver coins to an amount not exceeding forty shillings, and 
 gold coins to any amount. 
 
 (e) Martin v. CImuntry (1747), 2 Stra. 1271; cf. Be Boyse (1886), 
 33 Ch. D. at p. 621. 
 
 (/) CooJc v. Sattcrlee (1826), 6 Cowan, New York R. 108; Story, 
 §43. ' 
 
12 
 
 Bills of Exchange Act, 1882. 
 
 §3. 
 
 Bills and 
 notes under 
 20s. 
 
 Order not 
 
 request. 
 
 Certainty 
 required. 
 
 a certain quantity of iron is not a bill (</).. But in :tho 
 United States it seems that an instrument which gives 
 tho holder an election to require something: to be done in 
 lieu of payment of money may be valid as a negotiable 
 instrument (h). As to the conversion into English money 
 of bills expressed to be payable in a foreign currency, e.g., 
 dollars or rupees, see sect. 72 (4), post. 
 
 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 exceeding 201. 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 
 (except in the case of a note payable to bearer on demand) 
 there is now no limit to the sum for which an English 
 bill, note, or cheque may be drawn. By the Bank Notes 
 (Scotland) Act, 1845 (8 & 9 Vict. c. 38), ss. 16 and 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 not exceeding 20L, but an excep- 
 tion is made in favour of drafts on a banker for the pay- 
 ment -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. 
 
 A bill is an i" order " ; therefore it must in its terms be 
 imperative and not preoative, but the insertion of mere 
 terms of courtesy will not make it precative . Thus, an 
 instrument running, " Mr. B- 'will much oblige Mr. A. by 
 paying to the order of C, &c," was held good as a bill (•$); 
 but an instrument running, " Please let bearer have 100Z. 
 and you will much oblige me," was held not to be a 
 bill (ft). - 
 
 It is of the essence of a bill that it should be payable 
 at all events. Therefore its requisites must appear on 
 its face with reasonable certainty. " The reason is (and 
 
 (g) Dixon v. Bovill (1856), 3 Macq. H. L. 1. 
 
 (h) New York Negotiable Instruments Law, § 24, and oases cited 
 in Crawford's edition. 
 
 (0 Muff v. Webb (1794), 1 Esp. 129; ef. B. v. Ellor (1784), 1 
 Leach, C. O. 323. The common form of a French bill runs "il vous 
 plajra ;pay.er.?' , 
 
 (&) Little v. Slaclcjord (1828), 1 M. & M. 171; cf. Hamilton v. 
 Spottiswoode (1849), 4 Exch. 200, where the document ran, "We 
 authorize you to pay." 
 
Form and Interpretation. 1$ 
 
 it is equally applicable to all negotiable instruments) §3. 
 
 that it would greatly perplex the commercial transactions 
 
 of mankind, and diminish and narrow their credit and 
 negotiability, if paper securities of this kind were issued 
 out into the world encumbered with conditions, and if 
 the persons to whom they were offered in negotiation 
 were obliged to inquire when these uncertain events 
 would be reduced to a certainty. And hence the general 
 rule is that a bill of exchange always implies a personal 
 general credit not limited or applicable to particular 
 circumstances and events which cannot be known to the 
 holder in the general course of its negotiation " (I). Con- 
 cerning the certainty required as to the drawee, see sect. 6 ; 
 as to the payee, see sect. 7; as to the isum payable, see 
 sect. 9. 
 
 A bill drawn payable in the common form, " as per Condition! .1 
 advice," is not conditional (m) ; but a bill payable so many instruments, 
 days after the arrival of a certain ship is conditional, and 
 invalid, for the ship may never arrive (w) ; and tbe ex- 
 pression of an executory consideration on the face of a note 
 may perhaps make it conditional (o). A demand draft 
 on a bank payable on condition that a receipt form at tbe 
 foot be duly signed is conditional (p) . As to instruments 
 payable on a contingency, see further, sect. 11 (2), post, 
 and sects. 73 and 83, post. There is this distinction 
 between a bill and a note. A bill may not be drawn con- 
 ditionally, 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, 
 conditionally: see sect. 33. Again, a bill or note uncon- 
 ditional in form may, as between immediate parties, be 
 delivered conditionally: 6ee sect.- 21 (2), post. 
 
 (3) An order to pay out of a particular fund Particular 
 
 (0 Story, § 46 ; of. Carlos' v.* Fanoourt (1794), 5 T. R. at ppi 485, 
 487. • • ■ 
 
 (m) Story, § 65. See effect of " advice " there considered. 
 
 («) Palmer v. Pratt (1824), 2 Bing. 185. As to a note payable 
 "as per agreement," see Jury v. Barker (1858), E. B. & E. 459. 
 
 (o) Drury v.Mucaulay (1846), 10 M. & W. 146 (prom. note).* But 
 see sub-sect. 3, post. 
 
 (p) Savins v. London and S. W. Bank, (1900) 1 Q. B. 270, G. A. ; 
 distinguished Nathan v. Ogden's, Ltd: (1:905), 93 T,. T. N! S. 353, 
 and 94 Ea T. BT.' S. 126, C. A., where the sighing' of the receipt was 
 not made an express condition. ' 
 
14 Bills op Exchange Act, 1882. 
 
 §3- 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 (b) a statement of the transaction which gives 
 rise to the bill, is unconditional (g). 
 
 Illustrations. 
 
 The following are invalid, namely, orders or promises to pay 
 (say) 100Z.:— 
 
 1. out of the money in your hands belonging to the X. 
 Company (r) ; 
 
 2. out of the money due from X. as soon as you receive it (s); 
 
 3. out of the money arising from my reversion when sold (£); 
 
 4. out of the moneys now due, or hereafter to become due, to 
 me under the will of my late father, and before making any 
 payment to me thereout (m) . 
 
 The following are valid, namely, orders or promises to pay (say) 
 100Z.:— 
 
 5. as my quarterly half -pay due 1st February by advance (a;) ; 
 
 6. being a portion of a value as under, deposited in security for 
 the payment hereof (y) ; 
 
 7. on account of moneys advanced by me for the X. Com- 
 pany^); 
 
 8. against credit No. 20, and place it to account, as advised 
 per X. and Co. (as); 
 
 ' 9. which you will please charge to my account, and credit 
 according to a registered letter I have addressed to you (6); 
 
 10. bill drawn against shipment of cotton running " and charge 
 the same to account of 100 E. S. M. L. bales cotton " (c).. 
 
 (j) Cf. New York Negotiable Instruments Law, § 22, and cases 
 cited in Crawford's edition. 
 
 (r) Jennet/ v. Merle (1723), 2 Ld. Raym. 1361. 
 
 (s) Dawkes v. Lord Delormne (1771), 3 Wils. 287; 2 W. B. 782. 
 
 (<) Carlos v. Fancourt (1794), 5 T. R. 482, Ex. Ch.; Hill v. 
 Halford (1801), 2 B. & P. 413, Ex. Ch. 
 
 («) Fisher v. Calvert (1879), 27 W. R. 301, M. R. 
 
 QxyMacleod v. Snee (1728), 2 Stra. 762. 
 
 (y) Haussoullier v. Harlsinak (1798), 7 T. R. 733. 
 
 (z) Griffin v. Weatherby (1868), L. R. 3 Q. B. 753. 
 
 (a) Cf. Banner v. Jolimlon (1871), L. R. 5 H. L. 167. 
 
 (J) Re Boyse (1886), 33 Ch. D. 612. 
 
 (p). Guarantee Trust Co. of New York v. Ilannay (1918), 23 Com. 
 Cas.399, O. A.; (1918) 2 K. B. 623, O. A. l(forged bill of lading). 
 
Form and Interpretation. 15 
 
 An order invalid as a bill may of course bo valid as an § 3. 
 equitable assignment (d). Seethe English and American 
 authorities up to 1874 reviewed in Munger v. Shannon (e) . 
 
 (4) A bill is -not invalid by reason — Date, place, 
 
 (a) That it is not dated ; and value - 
 
 (b) 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 Date, 
 to issue it undated. As to filling in the date in the case 
 of an undated bill or acceptance, see sects. 12 and 20, 
 post. The alteration of the date is a material alteration: 
 sect. 64 (2). Under the continental codes it is essential 
 that a bill should be dated. As to the effect of this con- 
 flict of laws, see sect. 72 (1). 
 
 It is believed that all countries, except those where the Old and New 
 Greek Church is the prevailing religion, use the new stylo, y 
 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. 
 
 In England it is usual to insert in the bill either a statement 
 statement of the value, or the words "value received," of value, 
 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 (g) ; while in a bill payable to a third party, they 
 mean prima facie value received by the drawer (h). 
 Whether a bill expresses that value has been given or not, 
 
 (d) Buck v. Robson (1878), 3 Q. B. D. 686; Fisher v. Calvert 
 (1879.), 27 W. R. 301; see, too, Glyn v. Mood (I860), 1 De G. 
 F. & J. at p. 348, as to this distinction, and passim, Percival v. Dunn 
 (1885), 29 Ch. D. 128. 
 
 (e) Munger v. Shannon (1874), 61 New York R. 251; and see the 
 later cases in New York reviewed by Piekford, L.J., in Guarantee 
 Trust Co. of Neiv York v. Bannay (1918), 23 Com. Cas. 399, C. A.; 
 (1918) 2 K. B. 642, C. A. 
 
 (/) Hatch ». Trayes (1840), 11 A. & E. 702. 
 (g) Hiyhmore v. Primrose (1816), 5 M. & 8. 65. 
 (A) Grant v. Da Costa (1815), 3 M. & S. 351. 
 
16 
 
 Bills op Exchange Act, 1882. 
 
 §3. 
 
 Place of 
 making. 
 
 Place of 
 payment. 
 
 extrinsic evidence is admissible between immediate parties 
 and those in privity with them to impeach the considera- 
 tion, and 6how its absence, failure, or illegality (*) . The 
 contracts arising on a bill are contracts in writing. Sub- 
 ject, 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 (7c). Thus a 
 note is expressed to be given " for commission for business 
 transacted." In an action by payee against maker evi- 
 dence is admissible to show that the payee never earned 
 his commission (I) ; but parol evidence would not be ad- 
 missible" to vary the time of payment, or otherwise contra- 
 dict the terms of the instrument as interpreted by the law 
 merchant: see post, p. 64. 
 
 Under' some of the foreign codes it is essential that the 
 nature of the consideration should in general terms be 
 stated in the bill(m). As to the effect of this conflict 
 of laws, see sect. 72 (1). 
 
 It is usual and convenient to state in a bill the place 
 where it is drawn. By the Bank Notes (No. 2) Act, 1828 
 (9 Geo. 4, c. 65), a penalty is imposed on the issue or nego- 
 tiation in England of bills (other than cheques) or notes 
 payable to bearer on demand for less than 51., which are 
 made or purport to be made " in Scotland or Ireland or 
 elsewhere out of England." 
 
 It seems that a bill may state an alternative place of 
 payment (re). Where a bill is made payable elsewhere 
 than, at the residence or place of business of the drawee, 
 the bill is said to be " domiciled " where payable. As to 
 presentment for payment when no place of payment is 
 
 (*) Abbott ;'v. Ben'drieks (1840), 1 M. & Gr. 791; of. Thompson v. 
 Olubley (1836), 1 M. & W. 212; Abrey v. Crux (1869), L. R. 5 
 C. P. 37. 
 
 (£) Ridoutv. Bristow (1830), 1 Cr. & J. 231; Foster v. .Jolly 
 (1835), 10. M. & R. 703; Young v. Austin (1869), %. B. 4 O. P. 
 553; Hill v. Wilson (1873), 42 L. J. Ch. 817; L. B. 8 Oh. App, 888. 
 
 (7) Abbott v. HendricMs (1840), 1 M. & Gr. 791, see at p. 796. 
 
 (m) French Code de Commerce, Art. 110; Netherlands Code', 
 Art. iOO; as' to false statement of value and its effects (supposition 1 de 
 valeur), see Noug'uier', §§ 282, 283. 
 
 (») Beaching v. Gower (1816), Holt, N. P. C. 313; of. Pollard v., 
 Herries (1803), 3 B. & P. 335; note payable in London or Paris' at " 
 
Form and Interpretation. 17 
 
 specified, arid the address of the drawee is riot given, see § 3. 
 
 sect. 45 (4), post. By French Code, Art. 110; Italian ■ 
 
 Code, Art. 251; and German Exchange Law, Art. 4, the 
 place of payment must be stated. 
 
 4. (1) An inland bill is a, bill which is, or on inland and 
 the face of it purports to be (a) both drawn and lwAgu biU8 - 
 payable within the British Islands, or (b) drawn 
 within the British Islands upon some person 
 resident therein. Any other bill is a foreign bill. 
 
 For the purposes of this Act " British Islands" 
 mean any part of the United Kingdom of Great 
 Britain and Ireland, the Islands of Man, Guernsey, 
 Jersey^ Alderney, and Sark, and the islands 
 adjacent to any of them being part of the 
 dominions of Her Majesty. 
 
 (2) Unless the contrary appear on the face of 
 the bill the holder may treat it as an inland bill. 
 
 Illustbations. 
 
 1. A bill is drawn in Liverpool on a merchant in London. It is 
 accepted payable in London, but is indorsed in Paris. This is 
 an inland bill (o). ' '•• 
 
 2. A bill is drawn in Liverpool on B., who resides in London. 
 B. accepts it payable in Paris. This is an inland bill. 
 
 3. A bill is drawn in London upon a merchant in Brussels, pay- 
 able in London, and is accepted. This is an inland bill (p). 
 
 Tho distinction between an inland and a foreign bill is 
 this. A. foreign bill if dishonoured must be protested, 
 but an inland bill need not be protested: see sect. 51, ■post. 
 But if any party to a bill is. resident abroad, it should, as 
 a matter of prudence, be protested for the purpose of 
 recourse against him in his own country. By sect. 45 (4), 
 where no place of payment is specified in a bill, it is pay- 
 Co) See sect. 72 (2); and cf. Lebel v. Tucker (1867), L.; R. 3 
 Q. B. 77. 
 
 0>) Cf. Amner v. ClarTt (1835), 2 C. M. & R. 468; and sect. 72 (3). 
 If the bill were not drawn payable in London,, it would in its origin 
 be a foreign bill, and would, presumably, . continue so, though sub- 
 sequently accepted payable in London. 
 
 c. 2 
 
18 
 
 §4. 
 
 Bills of Exchange Act, 1882. 
 
 able at the address of the drawee. As to the measure of 
 4amage& when a bill is dishonoured abroad, see sect. 57 (2), 
 post; and as to conflict of laws, see sect. 72, post. 
 
 Sub-sect. (1) reproduces the effect . of the repealed 
 19 & 20 Vict. c. 97, s. 7, with the addition of the words, 
 " or on the face of it purports to be." Sub-sect. (2) is new. 
 The result appears to be that though a hill purports to be 
 a foreign bill, the holder may nevertheless ' show that it 
 is in fact an inland bill for the purpose of excusing 
 protest; while if it purports to be an inland bill, though 
 really a foreign bill, he may treat it, at his option, as 
 either. 
 
 This section does not affect the provisions of the Stamp 
 Act, 1891, which are saved by sect. 97 (3). For stamp 
 purposes any bill drawn or made out of the United King- 
 dom, e.g., a bill drawn in the Isle of Man— is a foreign 
 bill: see post, pp. 399, 400. As to a foreign note, see 
 sect. 89 (4), post. 
 
 Effect where 5. (1) A bill niay be drawn payable to, or to 
 partrtobiu the order of, the drawer; or it may be drawn 
 a ™ s * esame payable to, or to the order of, the drawee (q). 
 
 Illustration. 
 
 A bill in the form ''pay to order" is signed by the 
 
 drawer and indorsed by him. This is a bill payable to drawer's 
 order ,-as if it ran "pay to my order " (>•). 
 
 A bill is sometimes drawn in the form " Pay to your 
 own order," when the drawee acts in two different 
 capacities, e.g., if he be in business on his own account, 
 and also agent for some other person interested in the 
 bill (s) . In such case, it is clear that the instrument is not 
 a bill which can be enforced' until the drawee has indorsed 
 it away (t). So, too, when a customer wishes to get cash 
 from his bankers over the counter, he sometimes draws a 
 cheque in the form " Pay yourselves." 
 
 (<?) New York Negotiable Instruments Law, § 27. 
 
 (r) Chamberlain v. Young, (1893)2 Q. B. 206, O. A. Sed qn.. per 
 Bowen, L. J., if the instrument had run, " Pay to or order." 
 
 (s) See Holdsieorth v. llunter (1830), 10 B. & C. 449; Witie r. 
 Wttliams (3876), 28 Amer. E. 294; Pardessus, § 339. 
 
 (0 Cf. i?. v. Bartlett (1841), 2 M. & E. 362. 
 
Form and Interpretation. 19 
 
 (2) Where in a bill drawer and drawee are the § 5. 
 same person, or where the drawee is a fictitious Drawer and 
 
 . . drawee came 
 
 person or a person not having capacity to contract, person or 
 the holder may treat the instrument, at his option, 
 either as a bill of exchange or as a promissory 
 note (&), 
 
 Illustrations. 
 
 1. A firm carries on business in London and Liverpool. The 
 London house draw a bill on the Liverpool house. The holder 
 may treat it as a note made by the London house payable in 
 Liverpool; and if it be not paid the omission to give notice of 
 dishonour to the London, house is immaterial (x) . 
 
 2. A. draws a bill on B. and negotiates it away; B. is a fictitious 
 person. The holder may treat the bill as a note made by A. He 
 need not prove presentment or give notice of dishonour (y) . 
 
 3. The directors of a joint stock company draw a bill in the 
 name of the company, addressed "To the Cashier." The holder 
 may treat it as a note by the company (2). 
 
 By sect. 2, ante, " person " includes a body of persons, 
 "whether incorporated 1 or not. For purposes of proof in 
 bankruptcy, where drawer and drawee are the same person 
 or firm, the instrument can only be treated! as a note; that 
 is to say, there cannot be two proofs against the same 
 estate, because of the form of the instrument (a). As to 
 fictitious payee, see sect. 7 (3), post. As to persons "not 
 having- capacity to contract," see sect. 22, post. As to 
 fictitious drawer, see sect. 55 (2), post. By sect. 41 (2), 
 presentment for acceptance is excused where the drawee is 
 a fictitious person or a person not having capacity to con- 
 tract by bill. By sect. 46 (2), presentment for payment 
 is excused where the drawee is a fictitious person. By 
 sect. 50 (2), notice of dishonour is dispensed with as 
 
 (w) New York Negotiable Instruments Law, § 214. 
 
 (a;) Miller v. Thompson (1841), 3 M. & Gr. 576; Fairchild v. 
 Ogdensburgk Railway Co. (1857), 15 N. Y. 337; Capital and Counties 
 Banh v. Gordon, (1903) A. C. 240, at p. 250, H. L.; of. German 
 Exchange Law, Art. 6; Willans v. Ayers (1877), 3 App. Cas. 133, 
 P.'C; He Commercial Bank of South Australia (1887), 36 Ch. D.'at 
 p. 325. 
 
 (y) Smith v. Bellamy (1817), 2 Stark. 223. 
 
 (z) Allen v. Sea, Fire, and Life Assurance Co. (18&0), 9 C. B. 574. 
 
 (a) Banco de Portugal v. V/addett (1880), 5 App. Cas. 161, JL L.; 
 see sect. 97 (1), post, saving bankruptcy laws. 
 
 2(2) 
 
20 Bills of Exchange Act, 1882. 
 
 § 6. regards the drawer where drawer land drawee are. .the same 
 person, or where the drawee is a fictitious person or, a 
 person not having capacity to contract; and as regards an 
 indorser where the drawee is a fictitious pef scin ' or & 
 person not having capacity to contract, and the indorser 
 was aware of the fact at the time he indorsed the bill. 
 If both drawer and drawee are fictitious persons the bill 
 might, perhaps, be treated as a note made by the first 
 indorser. 
 
 Address to 6. (1) The drawee must be named or otherwise 
 
 drawee. indicated in a bill with reasonable certainty (b). •■; 
 
 Illustrations. 
 
 1. Instrument in the form of a bill, but addressed to no one. 
 B. writes an acceptance thereon. This is not a bill, and B. is not 
 liable as an acceptor (c) ; but he may be liable as the maker of 
 a note (d). 
 
 2. Instrument in the form of a bill payable to drawer's order, 
 not containing the name of a drawee, but expressed to be payable 
 "at No. 1, Union Street, London." B., who lives there, accepts 
 it. This is a bill, and B. is liable as acceptor (e). 
 
 3. Instrument in the form of a bill. Where the address to the 
 drawee should be are the words "at Messrs. B.. & Co." This is 
 a bill addressed to B. & Co. (/). 
 
 As to a fictitious drawee, see sect. 5 (2). The question 
 raised in Illustration 2 has arisen also in Scotland and in 
 France, and has been decided in the same way (<?). 
 Speaking of the indication of the drawee, Mr. Justice 
 Story says: " This seems indispensable to the rights, 
 duties, and obligations of all the parties, for the payee 
 cannot otherwise know upon whom he is to call to accept 
 and pay the bill; nor can any other person know whether 
 it is addressed to him or not, and whether he would be 
 justified in accepting and paying the bill on account of 
 the drawer" (h). As to filling up material blanks, see 
 sect. 20, post. 
 
 (5) Cf. Veto v. Reynolds (1854), 9 Exoh. 410,, and U Exoh. 418, 
 Ex. Ch.; New York Negptiable Instruments Law,'§ 20 .(5). 
 
 (c) Petal. Reynolds, supra; of. Edis v. Bury (1827), 6 B. & C. 433. 
 
 \d) Fielder'v. Marshall (1861), 80 L. J. C. P. 158. 
 
 (e) Gray v. Milner (1819), 8 Taunt. 739. , 
 
 (/) Shuttleworth y. Stephens (18A8), 1 Camp. 407., 
 
 (a) Thompson, 2nd ed. p. 46; Nonguier, § 131. 
 
 \h) Story on Bills, § 58. ], 
 
Form and Interpretation. 21 
 
 (2) i A bill maybe addressed to two or more §6. 
 drawees whether they are partners or not, but an Several 
 order addressed to two drawees in the alternative, rawee * - 
 or to two or more drawees in succession, is not a 
 bill of exchange (■*). 
 
 By sect. 19 (2), post, the acceptance of some one or 
 more of several drawees, but not of all, is a qualified 
 acceptance. Though a bill may not be addressed to two 
 drawees in succession, or in the alternative, it may name 
 a drawee in case of need: see sect. 15; but his status 
 is wholly different from that of an ordinary drawee. 
 Alternative* or successive drawees would give rise to 
 difficulty as to the recourse if the bill was dishonoured. 
 This difficulty does not arise in the case of a note; con- 
 sequently the makers of a note may be liable jointly, or 
 jointly and severally, according to its tenour (sect. 85), 
 while the acceptors of a bill can only be liable jointly. 
 A note payable in the alternative by one of two makers 
 is invalid (fc) . Under the continental codes there may 
 be an " aval " on a bill for the acceptor; see note to sect . 56, 
 post. 
 
 7; (1) Where a bill is not payable to bearer, Certainty 
 the payee must be named or otherwise indicated topayee.* 8 
 therein, with reasonable certainty (I). 
 
 Cheques are commonly drawn payable to bearer, bills 
 but rarely so. 
 
 " A bill of exchange," says Mr, Justice Story, " ought 
 to specify to whom the same is payable, for in no other 
 way can the drawee, if he accepts it, know to whom he 
 may properly pay it, so as to discharge himself from all 
 further liability ": Story, § 54. - 
 
 The continental codes prohibit bills drawn payable to 
 bearer, but admit the indorsement in blank of bills payable 
 to drawer's order; 
 
 Extrinsic evidence is admissible to identify the payee Evidence of 
 
 identification . 
 
 («') Cf. JacJcson v. Hudson (1810), 2 Camp, at p. 448, " There cannot 
 be a series of acceptors": New York Negotiable Instruments Lawf, 
 § 212. 
 
 (K) Ferris v. Bond. (1821), 4 B. & Aid. 679. 
 
 (1) Cf. New York Negotiable Instruments Law, § 27 (6). 
 
38 Bills of Exchange Act, 1882. 
 
 § 7. when misnamed, or when designated by description only, 
 but not to explain away an uncertainty patent on the 
 bill (m). Thus, if a bill is payable " to the order of the 
 Treasurer of Portugal," evidence is admissible to show 
 that C. was the treasurer when the bill was issued (n) ; and 
 if a bill is payable " to the order of J. Smythe," evidence 
 is admissible to show that T. Smith is the person intended 
 to be described thereby (o). But if a bill be drawn in the 
 
 form, " Pay or order," evidence is not admissible 
 
 to show that C . was intended to be the payee (p) . A bill 
 
 payable " to — order," and indorsed by the drawer, 
 
 is payable to drawer's order (q). As to filling up the 
 blank by inserting a payee's name, see sect. 20, post. In 
 a Scotch case, an instrument running, " Received' from C. 
 the sum of 30?. payable on demand," and signed, was held 
 to be a note payable to C. (r); and' in a New York case a 
 note payable " to the order of the indorser " was held good 
 as being payable to any holder who might indorse it (*). 
 By sect. 32 (4), post, where the payee is wrongly design 
 nated or his name is misspelt, he may indorse the bill as 
 therein described, adding, if he think fit, his proper 
 signature. 
 
 Alternative (2) A bill may be made payable to two or more 
 
 payee oroffice ..,,"'- i j n - ,, 
 
 holder. payees jointly, or it may be made payable in the 
 
 alternative to one of two, or one or some of 
 several payees. A bill may also be made payable 
 to the holder of an office for the time being (I). 
 
 This sub-section materially alters the previous law. 
 Before its enactment a bill drawn payable to the " treasurer 
 
 (m) Soares v. Glyn (1845), 8 Q. B. 24, Ex. Ch. 
 
 '(») Ibid.; cf. Holmes v. Jacques (1866), L. E. 1 Q. B. 376. 
 
 (o) Willis v. Barrett (1816), 2 Stark. 29; Jacobs v. Benson (1855), 
 39 Maine, E. 132. 
 
 ,(jp) R. v. Randall (1811), E. & E. 195. But Exchequer bills in 
 this form are deemed to be payable to bearer: Woohey v. Pole (1820), 
 4 B. & Aid. 1. Treasury bills and Council of India bills, too, are 
 issued in this form. See form of Treasury bill, post, p. 382. 
 
 (q) Clmmberlain v. Young, (1893) 2 Q. B. 206, O. A. ; and cf . Dann 
 v. Sherwood (1895), 11 Times L. E. 211. 
 
 . (j) Thorbum On Bills, p. 35; M'Gubbin v. Stephen (1856), 18 D. 
 1824. 
 
 (s) United States v. White (1841), 2 Hill, E. 59. 
 
 (0 New York Negotiable Instruments Law,> § 27, and cases cited 
 in Crawford's edition. 
 
Form and Interpretation. 23 
 
 for the time being " of a society was void 1 for un- § 7. 
 
 certainty (u); so, too, was a bill drawn payable " to the 
 
 order of T; Smith or S. Jones," unless there was apparent 
 community of interest (cc). 
 
 (3) Where the payee is a fictitious or non- Fictitious 
 existing person the bill may be treated as payable payee ' 
 to bearer. 
 
 Illustrations. 
 
 1. A. draws a bill payable to O.'s order. 0. is a fictitious 
 person. 1 The drawee accepts in ignorance of this fact. A. then 
 indorses the bill in blank in C.'s name, and discounts it with D., 
 who knows the circumstances. D., before the Act, could not 
 recover from the acceptor (y) ; but since the Act it seems- he 
 could. 
 
 2. A bill purporting to be drawn by A. and indorsed in blank 
 by C, the payee, is accepted 'supra protest for the honour of the 
 drawer. It turns out that A.'s signature was forged, and that 
 C. was a fictitious person.- The acceptor for honour is estopped 
 from setting up these facts if the bill is. in the hands of a holder 
 in due course (z). 
 
 3. By arrangement between the indorsee and acceptor a bill is 
 drawn and indorsed in the name of a deceased person. The 
 indorsee can recover from the acceptor (a) . 
 
 4. A bill purporting to be drawn by A. to the order of C. & Co., 
 and to be indorsed by them, is accepted by^ the drawee payable at 
 his bankers'. The bankers pay it at maturity.- A. is a correspon- 
 dent of the acceptor'gj who often draws bills in favour of 0. & Co. 
 It turns out afterwards that the names and signatures of the 
 drawer and payees were forged by a clerk of the acceptor's, who 
 obtained the money. In these circumstances 0. & Co. are 
 
 («) Cowie v. Sterling! (1856), 6 E. & B. 333, Ex. Ch.; Yates v. 
 Ncuh (1860), 29 L. J. C. P. 306. 
 
 (jx) Blanokenhagen v. Blundell (1819), 2 B. & Aid. 417 ; cf. Holmes 
 v. Jacques (1866), L. R. 1 Q. B. 376; and Watson v. Evans (1863), 
 32 L. J. Ex. 137, where the instruments were upheld. 
 
 (y) Hunter v. Jeffery (1797), Peake, Ad. Cas. 146; aliter, if the 
 acceptor knew the facts: Gibson v. Minet (1791), 1 H. Bl. 569, 
 H. £.; Gibson v. Hunter (1794), 2 H. Bl. 288; cf; Vagliano v. Bank 
 of England (1889), 23 Q. B. D. at p. 258, where the cases are 
 reviewed. 
 
 (z) Phillips v. im Thurn (1865), 18 C. B. N. S. 694, on demurrer; 
 Bee same case, L. B. 1 C. P. 463, on evidence. 
 
 (a) Ashpitel v. Bryan (1863), 32 L. J. Q\ B. 91; affirmed by 
 Ex. Ch. 33 L. J. Q.'B. 328; cf. Vagliano v. Bank of England (1889), 
 23 Q. B. D. at p. 260, C. A. 
 
24 Bills of Exchange Act, 1882. 
 
 § 7. fictitious payees,, and the bankers can debit the acceptor's account 
 with the sum so paid (6). v 
 
 5. A clerk in the account branch, by false pretences, induces 
 the plaintiff, his employer, to draw- cheques in favour of B., a 
 fictitious person, who he alleges has done work for the firm. He 
 then forges an indorsement in B.'s name, and negotiates the 
 cheques to the defendant for value. The bankers pay the defen- 
 dant; "■ The plaintiff cannot recover the money so paid from the 
 defendant (c). . 
 
 6. A clerk to a 'firm of market salesmen draws up, according to 
 custom, a series of cheques payable to customers of the firm, and 
 gets one of the partners to sign them. Instead of posting the 
 cheques to the payees, he forges their signatures, and cashes them 
 from time to time with, a, tradesman with whom he deals. The 
 cheques are collected by the tradesman's bank. The drawers of 
 the cheques can recover the amount thereof from , the; trades- 
 man, for the payee* were not fictitious (d). , , . 
 
 7. A. is induced by X. to draw a cheque in favour of 0., whom 
 X. fraudulently represents as having certain shares which A. 
 wishes to acquire. C. has no such shares, and X., instead of for- 
 warding the.cheque to him, forges his name and pays the cheque 
 in to his own bankers, who receive the amount. A., the drawer, 
 can recover the amount from the bankers, for 0. is not a fictitious 
 payee (e). 
 
 This sub-section was inserted in committee in place of 
 a clause working out in detail the effect of the cases.- The 
 words " or non-existing " seem superfluous; but they 
 were intended to cover the case given in Illustration 3. 
 The New York Negotiable Instruments Law, § 28, pro- 
 vides that an instrument is payable to bearer " when it is 
 payable to the order of a fictitious or non-existing person, 
 and such fact mas TmouM to the person malting it so pay- 
 able ; or when the name of the payee does not purport' to 
 be the name of any person," •e.g., when a cheque is drawn 
 in the form " Pay Cash " or " Pay Sundries." 
 
 (S) Bank of England v. Vagliano, (1891) A. C. 107, H. L., re- 
 versing Vagliano v. Bank of England (1889), 23 Q. B. D. 243, C. A. 
 See this case discussed by the author, Law Quarterly Review, vol. 7, 
 p. 216, and by Mr. Butterworth, vol; 10, p. 40; Paget on Banking, 
 ed. 2, pp. 48—53. 
 
 (e) Mutton v. Attenborough, (1899) 2 Q. B. 707, C. A.; affirmed 
 ibid., (1897) A. C. 90, H. L. ' 
 
 (d) Vinden v. Hughes, (1905) 1 K. B. 795; followed in an Irish 
 case, Town Advance Co. v. Provincial Bank of Ireland (1917), 2 
 Ir. E. 421. 
 
 (e) North and Soufli Wales Bank v. Macbeth. (1908) A. C. 137, 
 H. L.,' affirming Macbeth v. N. and S. Wales Bank, (1908) 1 K. B. 
 13, C. A. 
 
Form and Interpretation. 25 
 
 Before .the Act it appears that even a holder in due §7. 
 
 ■course could < not enforce a bill which he held under the 
 
 indorsement of a fictitious person, except as against 
 parties who were privy to the fiction; " the exception 
 that bills drawn to the order of a fictitious or non-existing 
 payee might be treated as payable to bearer was based 
 uniformly upon the law of estoppel, and applied only 
 ■against the parties who at the time they became liable 
 on the bill were cognizant of the fictitious character or 
 non-existence of the supposed payee " (/). 
 
 But the Act has swept away the former qualifications, 
 and now any holder who could recover if the bill had 
 been drawn payable to bearer can recover if the payee be 
 fictitious. When a bill is payable to the order of a 
 fictitious person it is obvious that a genuine indorsement 
 can never be obtained, and in accordance with the lan- 
 guage of the old cases and text-books the Act puts it 
 on the footing of a bill payable to bearer. But inasmuch 
 as a bill payable to one person., but in the hand's of another, 
 is patently irregular, it is clear that the bill should be 
 indorsed, and perhaps a bond fide holder would be justi- 
 fied in indorsing it in the payee's name. It might have 
 heen better if the Act had provided that a bill payable to 
 the order of a fictitious person might be treated as payable 
 to the order of anyone who should indorse it, or, in other 
 words,, as indorsable by the bearer. Though the bill may 
 be payable to bearer, it is clear that a holder who is party 
 or privy to any fraud acquires no title. What the Act has 
 done is to declare that the mere fact that a bill is payable 
 to a fictitious person shall not affect the rights of a person 
 who has received or paid it in good faith. 
 
 Vagliano's Case, cited in Illustration 4, gave rise to a 
 great conflict of judicial opinion as to whether C. & Co. 
 were fictitious payees. The Courts below held that, inas- 
 much as there was a real firm of C. & Co., the payees were 
 not fictitious; but according to the judgment of the 
 majority of the Lords, C. & Co. were fictitious payees, 
 and for this reason— the bill was a forgery throughout, 
 and the real C. & Co. never were, and never were intended 
 to be, the payees. If by any means they had' obtained 
 the bill they would not have been entitled to it, and their 
 
 (J) Vagliano v. Bank of England (1889), 23 Q. B. D. 243, at p. 260, 
 per Bowen, L:J., reviewing the cases; Story on Billa, §§ 56, 200. 
 
26 Bills of Exchange Act, 1882. 
 
 § 7. indorsement could have conveyed no title against the- 
 supposed drawer whose name was forged. It was as if 
 the forger had inserted the first name he came across in a. 
 directory (g) . 
 
 The signature of a fictitious person must be distin- 
 guished from (a) the forged signature of a real person,, 
 and (b) the signature of a real person-using a fictitious 
 name — for instance, John Smith may trade as " The Bir- 
 mingham Hardware Company," and sign accordingly (h)~ 
 But if a person,- with intent to defraud, signs" a bill in a 
 fictitious name he may be guilty of forgery; see sect. 1 
 of the Forgery Act, 1913 (3 & 4 Goo. 5, c. 27). 
 
 By sect. 34 (3), post, the provisions of the Act relating: 
 to a payee, apply, with the necessary modifications, to an 
 indorsee under a special indorsement. As to the estoppels- 
 which bind an acceptor as such, see sect. 54 (2), post ; and 
 as to the estoppels which bind a drawer or indorser as such,. 
 see sect. 55, post. As to estoppel by negligence, see note: 
 to sect. 24, post. 
 
 Before the Act, it was held that where a bill was drawn 
 payable to a deceased person in ignorance of his death, his 
 personal representatives might enforce the bill, and there 
 is nothing in the Act to derogate from' this ruling (i) . 
 
 In France the insertion of a fictitious payee constituted 
 a " supposition de nam," which avoids the bill in the 
 hands of any party with notice thereof (k) . Under most 
 of the continental codes' it is expressly provided that the 
 payor (acceptor or his banker) is not bound to verify the 
 genuineness of the indorsements (I), on the ground that 
 he has no means of doing so.- 
 
 What Mils are 8. (1) When a bill contains words prohibiting 
 
 negotiable. • -i • • • i • t t i 
 
 transier, or indicating an intention that it should. 
 
 (g) Bank t>f England v. Vaglianb, (1891) A. C. 107, H. L., judg- 
 ment of Lord Herschell; and see judgment of Lord Esher in Court 
 below, 23 -Q. B. D. at p. 247, and Law Quarterly Review, vol. 7,. 
 p. 216, vol. 10, p. 40. 
 
 (A) See, too, Schults v. Astley (1836), 2 Bing. N. C. 544; where- 
 Thomas Wilson Richardson drew a bill as Thomas Wilson. 
 
 (») Murray v. East India Go. (1821), 5 B. & Aid. 204. 
 
 (ft) tfouguier, §§ 277, 284—288. 
 
 (Z) See Italian Code, Art. 287 ; German Exchange Law, Art. 36. 
 
Form and Interpretation. 27 
 
 not be transferable, it is valid as between the §8. 
 parties thereto, but is not negotiable. 
 
 Illustrations. 
 
 1,. A aofce is drawn in the form, "I promise to pay C. only." 
 It is not negotiable. 
 
 2. A; draws a cheque, making it payable to 0. or order, and 
 crosses it "Account of 0.,' National Bank, Dublin." 0. indorses 
 it and sends it to his bankers (the National Bank), who credit 
 him with the amount. The bankers can maintain an action 
 against A., the drawer, if the cheque is stopped (m). 
 
 3. The acceptor of a bill payable to drawer or order when 
 accepting it writes over his acceptance the words " in favour of A. 
 (the drawer) only," and the words "or order" are struck out. 
 This may be construed as a mere memorandum, and the negotia- 
 bility of the bill is not restricted (m) . 
 
 This sub-section must be read' with sub-sect. (4). The 
 foreign codes do not recognize bills which are not nego- 
 tiable in their origin. As to when a bill negotiable in its 
 origin ceases to be negotiable, see sects. 35 and 36, post. 
 
 As to the expression "not negotiable" as part of the 
 crossing of a cheque, which has a speeial statutory- 
 meaning, see sect; 81, post. 
 
 (2) A negotiable bill may be payable either to 
 order or to bearer. 
 
 (3) A bill is payable to bearer which is ex- Bearer. 
 pressed to be so payable, or on which the only or 
 
 last indorsement is an indorsement in blank. 
 
 See " bearer " defined by sect. 2, ante, p. 4. This sub- 
 jection alters the law. It was intended to bring the law 
 into accordance with the mercantile understanding by 
 making a special indorsement control a previous indorse- 
 ment in blank. Before the Act it was held that where & 
 i ij ' , i , 
 
 O) National Bank v. Silke, (1891)' 1 Q. B. 435, C. A. See no*, 
 post, p. 305, as to " a/c payee." The judgments go beyond what 
 was necessary for the decision of the case, namely, that when the 
 cheque had been duly credited to the payee's account the banker lias 
 the ordinary rights of a banker who has credited his customer's account 
 with the amount of a cheque. 
 
 (»)■ Dtcroix v. Meyer, (1891) A. Ci 520, H. L. ; aliter, it seems, if 
 the acceptance had run " accepted in favour of C; only." ) • ..k.'. 
 
28 Bills of Exchange Act, 1882. 
 
 § 8. bill was indorsed in blank, its negotiability to bearer was 
 not affected by a subsequent special indorsement (o), 
 though the special indorser was only liable on his indorse- 
 ment to such parties as made title through it (p). 
 
 See sect. 34, post, as to blank indorsements, and con- 
 verting blank indorsements into special indorsements. 
 
 A bill payable " to J . O. or bearer " is payable to bearer, 
 but a bill payable " to bearer (J. O.) or order " is pre- 
 sumably payable to order. A bill payable " to J. 0. and 
 others or bearer," if marked "account payee," is not pay- 
 able to bearer (q). 
 
 Order. (4) A bill is payable to order which is ex- 
 
 pressed to be so payable, or which is expressed' to 
 be payable to a particular person, and does not 
 contain Words prohibiting transfer or indicating 
 an intention that it should not be transferable. 
 
 Illustration. 
 
 A bill is drawn in the form "pay 0., one hundred pounds." 
 This, in legal effect, is a bill payable, to 0. or order. 
 
 This sub-section alters the law. Before the Act it was 
 held in England that a bill or : note drawn payable to a 
 specified person without the addition of words authorizing 
 transfer, e.g., "Pay C," was not negotiable (r) . In 
 Scotland it was held that a bill or note was negotiable 
 unless it contained words prohibiting transfer, as, for 
 instance, "Pay O. only." The Act has adopted the 
 Scottish rule. 
 
 (5) Where a bill, either originally or by in- 
 dorsement, is expressed to be payable to the order 
 
 (o) Walker v. Maedonald (1848), 2 Exch. 527. 
 .(jo) Smith v. Clarke (1794), Peake, 225; Story, § 207. The New 
 York Negotiable Instruments Law, § 70, re-enacts the common law 
 rule. 
 
 ((?) House Property Co. v. London County, and Westminster Bank 
 (1915), 84 L. J. K. B. 1846. 
 
 (r) Plimley v. Westley (1835), 2, Bing. N. G. at p. 251; Whyte v. 
 Heylman (1859), 34 Pennsylvania E. 143; aliter, as. to an indorse- 
 ment, Edie v. East India Co. (1761)/ 2 Burr. 1216; of. Goodwin v. 
 Robarts (1875), L. B. 10 Ex. at p. 357. 
 
Form and Interpretation. 29 
 
 of a specified person, and not to him or "his order, § 8. 
 it is nevertheless payable to him or his order at 
 his option. 
 
 This sub-section is declaratory (s). It provides that 
 a bill payable " to the order of C." is in. legal effect pay- 
 able " to C. or order," i.e., that G. can demand payment 
 without giving a responsible indorsement. 0. of course 
 is bound to give a receipt to the same extent as any other 
 person who receives payment of money. See an indorse- 
 ment by way pf receipt distinguished by Byles, J., from 
 an ordinary indorsement which is in the nature of 'a 
 guarantee (t). 
 
 9. (1) The sum payable by a bill is a sum Sum payable. 
 certain within the meaning of this Act, although 
 it is required to be paid — 
 
 (a) With interest. 
 
 (b) By stated instalments. 
 
 (c) By stated instalments, with a provision that 
 upon default in payment of any instalment 
 the whole shall become due(u). 
 
 (d) According to an indicated rate of exchange, 
 'or according to a rate of exchange to be 
 
 ascertained as directed by the bill. 
 
 Illustrations. 
 
 1. Bill for 1001. payable "with, lawful interest." Valid (a). 
 
 2. Bill for 1001. payable by two equal instalments due 
 1st January and 1st July. Valid (y) . 
 
 (s) Smith v. M'Clure (180*.), 5 East, 476; of. Harvey v. Cane 
 (1876), 34 L. T. N. S. 64. 
 
 (*) Keane v. Beard (I860), 8 G. B. N. S. at p. 382; cf. Paget on 
 Banking ed. 2, p. 46. As to stamp exemption, see post, p. 408. 
 
 (a) Carton v. Kenealy (1843), 12 M. & W. 139; >cf: New York 
 Negotiable Instruments Law, §• 21 . ' J 
 
 <>) Cf . Warrington v. Early (1853), 2 E. & B. 763; 23 L. J. Q. B. 
 47- but see a Scotch case (Lambertoh v. Aiken (1899), 1 Ct. of iSess. 
 Cas. 189), where a note for 250J., "together with any interest that 
 may accrue 'thereon," was' held invalid, set ?«•/'*;■ ■ r "; ,' ' ' '•; . 
 
 (y) Carlon v. Kenealy (1843), 12 M. & W. 139; Gasktn- v. Dams 
 
30 Bills of Exchange Act, 1882. 
 
 § 9. 3. Bill for 1002. payable " by instalments," not specifying dates 
 
 — or amounts. Invalid (a). 
 
 4. Bill for 100Z. payable " by ten equal instalments, payable, 
 &c, all instalments to cease on the death of X." Invalid (a). 
 
 5. Bill for 1002., or bill for 1,000 francs, payable " at exchange 
 as per last indorsement." Valid. 
 
 6. Bill for 1002. "payable in Paris or London, at the choice of 
 the holder, according to the course of exchange upon Paris." 
 Valid(6). 
 
 i 
 
 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 (c). Since the abolition of the 
 Usury, Laws there is no limit in England as to the rate 
 of interest the parties may agree upon. In many 
 American states and continental countries usury laws are 
 still in force. Interest proper, that is to say interest 
 reserved by the instrument, must be distinguished from 
 interest by way of damages, as to which see sect. 57 (3), 
 post. As to money lenders and unconscionable bargains, 
 see post, p. 96. 
 
 The indorsement of a rate of exchange without authority 
 is a material alteration which may avoid a bill (d). See 
 a statement of the practice as to the sale of foreign bills, 
 and the mode of fixing the exchange in Suse v. Pornpe (e) . 
 
 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 mi^st 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. 403), which makes the date 1 of the instru- 
 ment the critical date for determining the amount of the 
 stamp. 
 
 (I860), 2F. Isl. 294. Days of grace must be added to the instalment 
 due-dates: Oridge v. Sherborne (1843), 11 M. & W. 374. 
 
 (s) Motfatt v. Edwards (1841), Car. & M. 16. 
 
 (a) Worley v. Harrison (1835), 3 A. & E. 669. 
 
 (6) Cf. Pollard v. Berries (1803), 3 B. & P. 335, prom. note. . 
 
 (c) Cf. He Commercial Sank (1887), 36 Ch. D. at p. 529. 
 
 (d) Hirsehfield v. Smith (1866), L. R. 1 C. P. 340. See sect. 64 
 as to alterations. 
 
 (e) Suse v. Pornpe (1860), 8 C. B. N. S. at p. 542; 30 L. ' J. 
 C. P. 75. 
 
 (/) See*ect, 72 (4), post; and Hirsehfield v. Smith (1866), L. E. 
 I C. P. at p. 353; Belgian Code, Art. 33. 
 
Form and Interpretation. 31 
 
 In the old case of Da Costav. Oole(g), a bill was drawn §9. 
 
 in England on Portugal, and expressed to bo payable in : 
 
 " rees," 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 
 l>e paid according to the former value . This decision seems 
 inconsistent with sect. 72 (4), post, as to bills expressed 
 to be payable in foreign, currency (h) . 
 
 The following instruments would be invalid as bills or Uncertain 
 notes, as not being for sums certain within the meaning 8am - 
 ■of sect. 3, namely: — An order to pay C. " 1001. and all 
 other sums which may be due to him " (i); or an order to 
 pay C. " the proceeds of a shipment of goods value 2,0007., 
 .consigned by me to you " (k); or an order to pay C. " the 
 balance due to me for building the Baptist College 
 Chapel" (I); or a promise to pay C. "100?. and the 
 demands of the Sick Club " (w);. or " 1001. and all fines 
 according to rule" (n). 
 
 (2) Where the sum payable is expressed in Discrepancy 
 
 1 a i • n i ii • t in words and 
 
 words and. also in figures, and there is a discre- figures. 
 pancy between the two, the sum denoted by the 
 words is the amount payable(o). 
 
 Illusteations. 
 
 1. A bill is drawn, "Pay to the order of 0. two hundred 
 pounds." In the margin is superscribed 2501. This is a bill for 
 200Z. only(p). 
 
 2. Bill on sufficient etamp for "one hundred pounds," with 101. 
 in the margin. The sum payable is 1001. (q). 
 
 (g) Da Costa v. Cole (1688), Skinner, 272, holder v. drawer. 
 
 (A) And cf. Rouquette v. Overmann (1875), L. R. 10 Q. B. 525 
 ■(postponement of payment by ex post facto legislation). 
 
 (i) Smith v. Nightingale (1818), 2 Stark. 375. 
 
 (/fc) Jones v. Simpson (1823), 2 B. & C. 318. 
 
 (Z) Crowfoot v. Gurney (1832), 9 Bing. 372. 
 
 (m) Bolton v. Dugdale (1833), 4 B. & Ad. 619. 
 
 («) Ayrey v. Fearnsides (1838), 4 M. & W. 168. 
 
 (p) Cf . New York Negotiable Instruments Law, § 36 (1), and cases 
 •cited in Crawford's edition. 
 
 (p) Saunderson v. Piper (1839), 5 Bing. N. C. 425; German Ex- 
 change Law, Art. 5. 
 
 (q) Cf. Garrard, v. Lewis (1882), 10 Q. B. D. 30, at pp. 34, 35; 
 and as to history of marginal figures, see per Bowen, L. J., at p. 32 ; 
 
32 Bills of Exchange Act, 1882. 
 
 § 9. 3. A bill is drawn, " Pay to the order of 0. one 'hundred." In 
 the margin is inserted 1001. This is a bill for 100Z. (r). 
 
 4. Bill in the. form, "Pay to my order, twenty-five, ten shil- 
 lings." This is sufficient as a bill for 257. 10s. («). : 
 
 5. A partner in a firm draws a cheque to bearer, not filling in 
 the amount in the space for words, but putting 21. ;in the space 
 for figures. A confidential clerk misappropriates the "cheque,, 
 writes " one hundred and twenty pounds ',' in the space for words, 
 and alters the "2 "into "120." If the bank, pays this cheque 
 to the clerk it can debit the firm's account with 1201. (£). 
 
 German Exchange Law, Art. 5, and some other con- 
 tinental codes, provide, 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 (u) ; but an instrument in this form 
 would be a prima facie authority to the holder to fill in 
 any sum the stamp would cover, see sect. 20, post. 
 
 Calculation of 
 interest. 
 
 (3) Where a bill is expressed to be payable 
 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 {%). 
 
 Illustrations. 
 
 1. Bill for 200Z., payable six months after date, with interest. 
 The sum payable at maturity is 205?. {y). , . 
 
 2. B. makes a note expressed to be payable with interest one 
 year after his death. Interest runs from the date of the note (z). 
 
 and of. Ileeney v. Addy (1910), 2 Ir. E. 688 (marginal figures only); 
 Story, § 42. ■ 
 
 (r) R. v. Elliot (1777), 1 Leach, C. C. 175. 
 
 (s) Phipps v. Tanner (1833), 5 C. & P. 488. 
 
 (£) London Joint Stock Bank v. Macmillan, (1918) A. C. 777, 
 H. L., reversing the Courts below. 
 
 («) Norwich Bank v. Hyde (1839), 13 Connecticut, 379; of. Saun- 
 derson v. Piper (1839),. 5 Bing. N. C. at p. 431. 
 
 (a;) Cf. New York Negotiable Instruments Law* § 36 (2). 
 
 (y) Doman v. Dibdin (1826), E. & M. 381. 
 
 (z) Roffey v. Greenwell (1839), 10 A. & B. 222; cf. Richards v. 
 Richards (1831), 2 B. & Ad. 447, before the Married Women's 
 Property Act. v '■ 
 
Form and Interpretation. SH 
 
 Seo "issue" defined by sect. 2, ante, p. 7. Interest §9. 
 
 proper, payable by the instrument itself, must be distin- 
 
 guished from interest by way of damages payable on its 
 dishonour (a). As to the latter, see sect. 57, post. The 
 interest reserved does not affect the stamp (6). 
 
 10. (1) A bill is payable on demand — Bin payable 
 
 (a) Which is expressed to be payable on 
 demand, or at sight, or on presentation ; or 
 
 (b) In which no time for payment is expressed. 
 (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 (c). 
 
 Sub-sect. (1) (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 payable " at sight " or " on presentation." 
 By virtue of sect. 14, post, days of grace do not attach to 
 bills payable on demand. 
 
 A post-dated cheque may be stamped as a bill payable 
 on demand (d) ; and when the time arrives, it is, of course, 
 payable without grace; but for many purposes it is 
 equivalent to a bill payable after date (e)_. By sect. 10 of 
 the Finance Act, 1899 (62 & 63 Vict. c. 9), post, p. 408, 
 bills of exchange expressed to be payable at a period not 
 exceeding three days after date or sight may be stamped 
 as bills payable on demand. For stamp purposes certain 
 documents, which would not be bills within the meaning 
 of this Act, require to be stamped as " bills payable on 
 demand." See sect. 32 of the Stamp Act, 1891, post, 
 p. 397. 
 
 (a) Cf. Ex p. Charman, Re Claggett (1887), W. N. p. 184, C. A. 
 (&) Pruessing v. Ing (1821), 4 B. & Aid. 204. 
 
 (c) New York Negotiable Instruments Law, § 26, and cases cited 
 in Crawford's edition. 
 
 (d) Gatty v. Fry (1877), 2 Ex. D. 265; Royal Bank of Scotland v. 
 Tottenham, (1894) 2 Q. B. 715, C. A.; Paget on Banking, ed. 2, p. 43. 
 
 (e) See note to sect. 13 (2); and Forster v. Mac/creth (1867), L. R. 
 2 Ex. 163. 
 
 c. 3 
 
34 Bills op Exchange Act, 1882. 
 
 § 10. 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. 
 
 Beforo the enactment of sub-sect. (2) the English law 
 on the subject dealt with was very obscure; but the sub- 
 section followed cases decided in the United States* As 
 to the rights of the transferee of an overdue bill against 
 parties liable thereon before its maturity, see sect. 36, 
 post. Under German Exchange -Law, Art. 16, the in- 
 dorser of a protested bill incurs no mercantile engagement. 
 See, too, Italian Code, Art. 260. 
 
 Mafut^ le 11- -A- kill 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 (g) : 
 
 (2) On or at a fixed period after the occurrence 
 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 not cure the defect (i). 
 
 m 
 
 Illusteations. 
 The following are valid, viz., orders to pay: — 
 
 1. Ten days after the death of X. (k). 
 
 2. Two months after H.M. ship Swallow is paid off (ft). 
 
 3. On the 1st January, when X. comes of age (I). 
 
 (/) By sect. 3, ants, a bill must be payable either on demand or at 
 a fixed or determinable future time. 
 
 (g) See sect. 14 (2), (3), as to fixing the due date of such bills in 
 ordinary caacs, and sect. 65 (5) as to the due date when accepted for 
 honour. 
 
 (h) See Colehan v. Coohe (1742), Willes, 393, at p. 399; Carlos v. 
 Fancourt (1794), 5 T. R. 482. 
 
 (j) New York Negotiable Instruments Law, § 23. 
 
 (/c) Colehan v. Cooke (1742), supra. 
 
 (Z) Qoss v. Nelson (1757), 1 Burr. 226. 
 
Form and Interpretation. 35 
 
 .4. One year after notice (m). §11. 
 
 5. One year after my death (w). 
 
 6. Two months after demand in writing (o). 
 
 7. Pive years after the opening of the S. Eailway (p) (?). 
 The following are invalid as bills, viz., orders to pay: — 
 
 8. When I marry X. (q). 
 
 9. When I am in good circumstances (r) . 
 
 10. Thirty days after the arrival of ship Swallow at 
 
 Calcutta (s). 
 
 11. Ninety days after sight, or when realized (t). 
 
 12. Ninety days after the dissolution of partnership between 0. 
 
 and X. and the settling of the books (m). 
 
 " Certainty," says Ashhurst, 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 
 aro not negotiable, because it does not appear on the face 
 of them whether or not they will ever be paid " (x). Under 
 the continental codes, such forms as are given in Illustra- 
 tions 1 to 7 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 as " billse nundinales " (y). Bills and notes 
 paj'able " en foire " are said to be now obsolete everywhere 
 except in Russia. 
 
 Seo further notes to sect. 73 (cheques), post. 
 
 12. Where a bill expressed to be payable at a ""^j^jf 
 iixed period after date is issued undated, or where payable after 
 
 (m) Clayton v. Gosling (1826), 5 B. & C. 360. 
 
 (n) Roffey v. Greenwell (1839), 10 A. & E. 222. 
 
 (o) Price v. Taylor (1860), 5 H. & N. 540; 29 L. J. Ex. 331. 
 
 (p) Cf. Ex parte Gibson (1869), L. It. 4 Ch. 662. No objection 
 raised. See contra, Blaekman v. Lehman (1879), 35 Amer. R. 57. 
 - (q) Pearson v. Garret (1689;, 4 Mod. 242. 
 
 (r) Ex parte Tootell (1793), 4 Ves. 372. 
 
 (s) Palmer v. Pratt (1824), 2 Bing. 185. 
 
 (t) Alexander v. Thomas (1851), 16 Q. B. 333. 
 
 («) Sackett v. Palmer (1857), 25 New York R. 179. 
 ■ Cx) Carlos v. Fancourt (1794), 5 T. R. at p. 486. 
 
 (J) Cf. Colehan v. Cooke (1742), Willes, at p. 399. See French 
 -Code, Art. 133; German Exchange Law, Art. 33; Italian Code, 
 Art. 252. 
 
 3(2) 
 
36 
 
 Bills of Exchange Act, 1882. 
 
 §l g - _ the acceptance of a bill payable at a fixed period 
 date, or a ft er s ioht is undated, any holder may insert 
 
 acceptance ° ' •> d . 
 
 after sight, therein the true date of issue or accptance, and 
 the bill shall be payable accordingly. 
 
 Provided that (1) 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 (s). 
 
 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 
 enactment 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 any possible inconvenience 
 that may arise on the negligent party who omitted to 
 date the bill or acceptance. In Scotland, under the 
 19 & 20 Vict. c. 60, s. 10, now repealed, oral evidence 
 might be given to prove the true date. See sect. 20, post, 
 for the general rule as to material omissions in a bill, and 
 the consequences of. supplying them, and sect. 64 as to 
 material alterations. 
 
 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. 
 
 Presumption 13. (1) Where a bill or an acceptance or any 
 being true indorsement 'on a bill is dated, the date shall, 
 
 date. . 
 
 (z) New York Negotiable Instruments Law, § 32. 
 
Form and Interpretation. 37 
 
 unless the contrary be proved, be deemed to be § 13. 
 the true date of the drawing, acceptance, or 
 indorsement, as the case may be (a). 
 
 (2) A bill is not invalid by reason only that it Ante-dating, 
 is ante-dated or post-dated, or that it bears date and Sunday's. 
 on a Sunday (b). 
 
 Illustrations. 
 
 1. B. gives a blank acceptance in 1857. The drawer, by inad- 
 vertence, fills it up as a bill dated 1856. The holder can recover 
 from the acceptor. 
 
 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 recover from 
 the parties liable thereon {d). 
 
 3. The payee of a post-dated cheque pays it in to his Hankers, 
 who credit him with the amount. If the cheque is stopped, the 
 banker can recover the amount from the drawer (e). 
 
 Sub-sect. 1 is declaratory of the common, law (/). Inas- 
 much 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 (g). , 
 
 The prim/a fade presumption arising from' the date 
 may be rebutted, e.g., for the purpose of ousting the 
 Statute of Limitations (h) . 
 
 The Acts which for fiscal purposes prohibited the 
 post-dating of cheques or bills payable on demand were 
 repealed by the Stamp Act, 1870 (i). To ascertain 
 
 (a) New York Negotiable Instruments Law, § 30, see Crawford's 
 edition. If the date is an impossible one, the law will adopt the 
 nearest possible day, e.g., September 30, when the bill bears date 
 September 31. 
 
 (S) Cf. New York Negotiable Instruments Law, § 31. 
 
 (c) ArmfieU v. Allport (1857), 27 L. J. Ex. 42. 
 
 (d) Pasmore v. North (1811), 13 East, 517; Usher v. Dauncey 
 (1814), 4 Camp. 97. 
 
 (e) Moyal Bank of Scotland v. Totttenham, (1894) 2 Q. B. 715, 
 O. A. ; cf . Robinson v. Benkel (1913), 29 T. L. R. 475 (indorsee v. 
 indorser of post-dated cheque originally given for losses at cards). 
 
 (/) Roberts v. Bethell (1852), 12 C. B. at p. 778. 
 
 (o) Cf. Anderson v. Weston (1840), 6 Bing. N. O. at p. 301. 
 
 (A) Cf. Montague v. Perkins (1853), 22 L. J. C. P. 187. 
 
 (t) Gatty v. Fry (1877), 2 Ex. D. 265. See Royal Bank of 
 
38 
 
 Bills of Exchange Act, 1882. 
 
 13. 
 
 Computation 
 of time of 
 payment. 
 
 whether under the stamp law the instrument is admissible 
 in evidence only the terms of the instrument itself need 
 be regarded (7c); and the fact th'at 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 ho had no notice (I). For many purposes a post- 
 dated cheque is equivalent to a bill payable after date (m), 
 and it is clear that if a banker pays a post-dated cheque 
 before its due date he does so at his own risk. The drawer 
 of a post-dated cheque is under no obligation to stop pay- 
 ment of it for the benefit of a third person, e.g., the. 
 payee's trustee in bankruptcy (n) . Bankers licensed under 
 the Bank Notes Act, 1828 (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 Geo. 4,. 
 c. 6, there was a penalty for post-dating bills under 51. 
 
 To d!hte-date a bill or note in order to defraud a third 
 party may amount to forgery (o) . 
 
 In Begbiev. Levi, decided in 1830 (p), 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 
 qualifications. The Act now removes this difficulty . 
 
 14. Where a bill is not payable on demand (q), 
 the day on which it falls due is determined as 
 follows : — 
 
 (I) Three days, called days of grace, are, in 
 ever}'- case where the bill itself does not 
 otherwise provide, added to the time of pay- 
 
 Seotland v. Tottenham, 2 Q. B. 7J.5, C. A., decided on the Stamp 
 Act, 1891. 
 
 (Je) Ibid., and Bull v. O'Sullivan (1871), L. R. 6 Q. B. 209, at 
 p. 213. 
 
 (I) Iiitehoook v. Edwards (1889), 60 L. T. N. S. 636; Royal Bank 
 of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A.: Robinson v 
 Benkel (1913), 29 T. L. R. 47S. 
 
 (m) Forster v. Mackreth (18,67), L. R. 2 Ex. 163. 
 
 ("») Ex parte Riehdale (1882), 19 Ch. D. 409, O. A. 
 
 (o) Forgery Act, 1913 (3 & 4 Geo. 5, o. 27), sect. 1: R. v. Ritson 
 (1869), L. R. 1 C. C. R. 200 (deed). As to bills which were ante- 
 dated to defraud creditors, see Re Gomersall (1875), 1 Ch. D 137 
 C. A.; Jones v. Gordon (1877), 2 App. Cas. 625. 
 
 (p) Begbie v. Levi (1830), 1 Cr. & J. 180. 
 
 (j) As to when a bill ia payable on demand, see sect. 10, ante. 
 
Form and Interpretation. 39 
 
 ment as fixed by the bill, and the bill is due § 14. 
 and payable on the last day of grace : Pro- 
 vided that — 
 
 (a) When the last day of grace falls on Days of grace. 
 Sunday, Christmas Day, Good Friday, 
 or a day appointed by royal proclamation 
 as a public fast or thanksgiving day(r), 
 the bill is, except in the case hereinafter 
 provided for, due and payable on the 
 preceding business day ; 
 
 {b) When the last day of grace is a bank 
 holiday (other than Christmas Day or 
 Good Friday (s)) under the Bank Holidays [34&ssvioi. 
 Acts, 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 31st January is payable " without grace " one 
 month after date. It is due on February 28th. A similar note, 
 dated January 1st, would be due on February lst(i). 
 
 2. A note for 100Z. is made payable by two equal instalments, 
 on January 1st and February 1st. The instalments fall due on 
 January 4th and February 4th (w) . 
 
 3. A bill 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 (as). 
 
 (r) As to the law before the Act, see Chitty on Bills, ed. 10, p. 262. 
 
 (*) Christmas Day and Good Friday are bank holidays in Scotland, 
 not common law holidays. 
 
 (J.) Of. Roehner v. Knickerbocker Life Ass. Co. (1875), 63 New 
 York R. 160. 
 
 («) Oridge v. Sherborne (1843), 11 M. & W. 374. 
 
 (as) Smith v. Kendall (1794), 6 T. R. 123. 
 
40 Bills of Exchange Act, 1882. 
 
 § 14. 3. A bill dated 28th November, a bill dated 29th November, 
 
 and a bill dated 30th November, each being payable three months 
 after date/ all fall due on March 3rd, when February has but 
 twenty-eight days. 
 
 6. A bill is dishonoured by non-payment on the last day of 
 grace. No right of action till the next day {y) . 
 
 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 foreign countries, was 
 made in committee but withdrawn. The number of days 
 of grace allowed in different countries differed consider- 
 ably, but it is believed that they have now been abolished 
 in all countries except England and some of her colonies 
 and dependencies, and some states in the United States (s) . 
 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 (a) . The allowance of days of grace is 
 regulated by the lex loci solutionis, irrespective of the 
 country where the bill is drawn: see sect. 72 (5), post. 
 
 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 statu- 
 tory 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 succeeding 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. But this argument has 
 lost its force now that early closing on Saturday has 
 become general. Moreover, Saturdav is the Jewish 1 
 Sabbath. In no country except the United Kingdom is 
 any distinction drawn between common law and statutory 
 holidays. In Scotland, Christinas Day and Good Friday 
 
 O) Kennedy v. Thomas, (1894) 2 Q. B. 759, C. A. 
 
 («) See French Code, Art. 135; German Exchange Law, Art. 33; 
 Italian Code, Art. 290; New York Negotiable Instruments Law, § 145, 
 and notes thereto in Crawford's editiofi, specifying- the other States 
 which have abolished days of grace. 
 
 (») Wiflen v. Roberts (1795), 1 Esp. 262. 
 
Form and Interpretation. 41 
 
 are bank holidays, but it was agreed to assimilate Scotch § 14. 
 
 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. 
 
 Formerly foreign bills were sometimes drawn payable Usances, 
 at one or more usances.. By " usance " is meant customary 
 time, that is to say, the time for payment as fixed by 
 custom, having 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 (6). 
 It was stated at the Hague conferences that the practice 
 of drawing bills at " usance," instead of after date or 
 sight, is now everywhere obsolete. But in mercantile lan- 
 guage, where it is the practice in a particular trade to 
 draw bills at a particular currency, e.g., ninety days after 
 sight, this currency is often referred to as the usance of 
 that trade. 
 
 (2) Where a bill is payable at a fixed period 4^*^ 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 (c). 
 
 (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 
 
 (S) Cf. Mutjord v. Walcoi (1698), 1 Ld. Raym. 574; Nouc/uier, 
 
 § 144. 
 
 (o) Campbell v. French (1795), 6 T. R. at p. 212; Story, § 329; 
 «f. German Exchange Law, Art. 32; New York Negotiable Instru- 
 ments Law, § 146. 
 
* 2 Bills of Exchange Act, 1886". 
 
 §14. bill be noted or protested for non-acceptance,, 
 
 or for non-delivery (a?). 
 Month. (4) The term "month" in a bill means calendar 
 
 month (e). 
 
 Illusteations. 
 
 1. The holder of a foreign bill, payable sixty days after sight,, 
 makes an agreement that if it be dishonoured by non-acceptance,. 
 he will re-present it for payment at maturity. Acceptance is re- 
 fused. The time of payment must be calculated from the day the 
 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 supra protest on January 5th. The. 
 time of payment must be calculated from January 1st, not from 
 January 5th (jr). 
 
 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 3iot 
 tho day of return to the holder — e.g., a bill 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. Of. sect. 42, post, and notes thereto. 
 Comparo sect. 18 (3) as to the acceptance of a bill which 
 has previously been refused acceptance. 
 
 Caseof need. 15. The drawer of a bill and any indorser may 
 insert therein the name of a person to whom the 
 
 (d) Campbell v. French (1795), 6 T. R. 200; cf. sect. 18 (3), 
 post. 
 
 (e) Webb v. Fairmaner (1838), 3 M. & W. 473; French Code, 
 Art. 132. 
 
 (/) Campbell v. French (1795), 6 T. R. 200; cf. French Oode v 
 Art. 131; German Exchange Law, Art. 32. 
 
 (g) See sect. 65 (5), post, which accords with custom, and over- 
 rides the dictum in Williams v. Qermaine (1827), 7 B. & C. at p. 471. 
 
 (A) Sturdy v. Henderson (1821), 4 B. & Aid. 592; cf. sect. 89 (3), 
 post. 
 
Form and Interpretation. 43 
 
 holder may resort in case of need, that is to say, § 15. 
 
 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 
 drawoo iiucase of need, or simply the " case of need." A 
 bill must be protested or noted for protest before it can 
 bo presented to the case of need: see sects. 65, 67, 68. 
 The concluding words of the section settle the moot point, 
 whether presentment to the case of need is obligatory or 
 optional in the United Kingdom. In some parts of the 
 United States presentment is, perhaps, obligatory (i), and 
 in India it is clearly obligatory (j) . Under the continental 
 codes presentment to the case of need is usually obliga- 
 tory, but then it provided that the case of need must be in 
 the same place where the bill is payable (fc) . In England 
 this is not so; for instance, a bill drawn on Liverpool 
 often narhes a case of need in London. It may possibly 
 bo 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 
 tho duties of the holder would be held to be regulated by 
 tho lex loci solutionis. 
 
 16. The drawer of a bill, and any indorser, Special 
 
 , . . -i , . stipulations 
 
 may insert therein an express stipulation — by drawer or 
 
 (1) Negativing- or limiting his own liability to ^rioting 
 
 the holder : M ^ 
 
 Illustration. 
 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 " (I), 
 
 (»') Story, § 65; but no American case is cited. The New York 
 Negotiable Instruments Law, § 215, adopts the English ■ section 
 verbatim. 
 
 (/) Indian Negotiable Instruments Act, s. 115. 
 
 (K) See Nouguier, § 244. The case of need is known in France as 
 the besoin or recommendataire. 
 
 (1) Goupy v. Harden (1816), 7 Taunt, at p. 163. 
 
44 Bills of Exchange Act, 1882. 
 
 § 16. or " Pay D. or order at his own risk " (m), 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 lia- 
 bility as an indorser (m) . 
 
 Waiving (2) Waiving as regards himself some or all of - 
 
 duties. the holder's duties. i 
 
 Illustbation. 
 0., 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 C. 
 
 An indorsement negativing or limiting liability is some- 
 times called a qualified indorsement (o). 
 
 Compare sects. 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 (p). As to the ordinary 
 liability of an indorser, see sect. 55 (2), post; and as to 
 the liability of a transferor by delivery, see sect. 58, post. 
 As to indorsements or guarantees by parties who have 
 never been holders, see sect. 56, post. 
 
 The provisions of this section are limited to the drawer 
 or indorser.. An acceptor may accept conditionally: see 
 sect. 19, post ; 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 (q). 
 
 An indorsement waiving the holder's duties relates only 
 to the indorser's liability, 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 
 
 (m) Rice v. Stearns (1807), 3 Massachusetts B,. 224. 
 
 (») Cf. Castrique v. Suttigieg (1855), 10 Moore, P. C. pp. 110 — 
 112, 117; German Exchange Law, Art. 14; Nouguier., §§ 268 — 270. 
 
 (o) .CI. New York Negotiable Instruments Law, § 68. 
 
 (p) Dumont v. Williamson (1867), reported in England, 17 L. T. 
 N. S. 71; Hannwm v. Richardson (1875), 21 Amer. li. 152; New York 
 Negotiable Instruments Law, § 115. 
 
 (?) 1 Bell, Com. 424, 7th ed. Cf. Steele v. M'Kinlay (1880), 5 
 App. Cas. at p. 781; and Italian Code, Arts. 266, 268. 
 
Form and Interpretation. 45 
 
 or indorser wishes to save expense in case of its return. § 16. 
 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 (r) ; and in France a similar 
 construction has been put on the phrases, " Retour son* 
 frais," " Retour sans protet," and " Sans compte de 
 retour" (s). It is very doubtful whether the English 
 Act would bear such an interpretation. 
 
 17. (1) The acceptance of a bill is the signifi- JK^t* 
 cation by the drawee of his assent to the order of of a °«eptance. 
 the drawer. 
 
 Illustrations. 
 
 1. Bill addressed to B. X. writes an acceptance on it. X. 
 is not liable as acceptor (f). 
 
 2. Bill addressed to B. B. accepts it. X. also writes an 
 acceptance on it. X. is not liable as acceptor (w). 
 
 3. Bill addressed to B. B. accepts it, and before issue X. backs 
 it with, his signature. X. is not liable as acceptor, and parol 
 evidence is not admissible to show that he guaranteed payment of 
 the bill to the drawer (as) . 
 
 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 (y) . 
 
 5. Bill 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 (z). 
 
 6. Bill addressed to B. and X. B. alone accepts. B. is liable 
 as acceptor (a) . 
 
 7. Bill addressed to B. & Co. X., a partner in that firm, 
 accepts it in his own name. He is liable as acceptor (6). 
 
 8. Bill addressed to B., who is a partner in the firm of X. & Co. 
 
 (V) Daniel, § 1090; Parshley v. Heath (1879), 31 Amer. R. 246. 
 
 («) Nouguier, § 259. The expression " sans compte de retour " 
 also negatives the right to draw a re-draft. 
 
 (0 Davis v. Clarke (1844), 6 Q. B. 16. 
 
 (w) Jackson v. Hudson (1810), 2 Camp. 447. Qu. if X. is liable 
 as indorser? See -Steele v. M'Kinlay (1880), 5 App. Cas. at p. 770. 
 
 (x) Steele v. M'Kinlai/ (1880), 5 App. Cas. 754. 
 
 («) Bult v. Morrell (1840), 12 A. & E. 745. 
 
 (z) Re Barnard, Edwards v. Barnard (1886), 32 Ch. D. 447, O. A. 
 
 (a) Oiven v. Von Vster (1850), 10 C. B. 318. See, too, 
 sect. 19 (2) (e), post. 
 
 (6) Owen v. Von Vster, supra; and see sect. 23 (2), post. 
 
46 Bills op Exchange Act, 1882. 
 
 § 17. B. accepts in the firm name. B. is personally liable as 
 acceptor (c). 
 
 9. Bill addressed to William B. His wife accepts it, signing 
 the acceptance "Mary B." If he authorizes her so to accept, or 
 afterwards promises to pay the bill, he is liable as acceptor (d). 
 Sed qu. now that husband and wife are no longer one legal 
 persona? 
 
 10. A bill 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 com- 
 pany (e). 
 
 11. A bill is addressed to "J. B., general agent of the X. 
 Company." He accepts it thus: "Accepted on behalf of the 
 company. — J. B." J. B. is personally liable as acceptor (/). 
 
 12. A bill 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 (g). 
 
 13. Instrument in the form of a bill which is addressed to no 
 one. , B. writes an acceptance on it. B. may be liable as the 
 maker of a note, but not as an acceptor (h) . 
 
 14. A firm of " Cormack Brothers " dissolved partnership, and 
 Carter, an agent, was appointed to wind it up. M. Cormack had 
 been a partner in the firm. Carter accepted, for his own purposes, 
 a bill drawn on " Cormack Brothers," signing the acceptance 
 " M. Cormack and'E. Carter." Held, that M. Cormack was not 
 liable on this acceptance ( i) . 
 
 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 (Je). ' 
 
 After the drawee has accepted a bill he is thenceforth 
 termed the " acceptor." By sect. 2, ante, unless the 
 
 (c) Nioholls v. Diamond (1853), 9 Exch. 154. 
 
 (d) Lindus v. Bradwell (1848), 5 C. B. 583. 
 
 (e) Okell v. Charles (1876), 34 L. T. N. S. 822, O. A.; Stacey & 
 Co. v. Wams (1912), 28 T. L. E. 209. 
 
 (/) Herald v. Connah (1876), 34 L. T.-N. S. 885; Mare v. Charles 
 (1856), 5 E. & B. 978. See contrd an American case, Laffin v. - 
 Sinshehmer (1877), 30 Araer. B. 472. 
 
 (g) Penrose v. Martyr (1858), E. B. & E. 499, decided on 19 & 20 
 Vict. c. 47 ; and Atkins v. Wurdle (1889), 58 L. J. Q. B. 377. See 
 row sect. 63 of 8 Edw. 7, c. 69. 
 
 CK) Fielder v. Marshall (1861), 30 L. J. C. P. 158. 
 
 (»') Odell v. Cormack (1887), 19 Q. B. D. 223. 
 
 (&) Lloyd v. Aihbu (1831), 2 B. & Ad. 23. Note that head note 
 to Kirk v. Blurton (1841), 9 M. & W. 284, is incorrect, the action 
 being against the drawer, not the acceptor. 
 
Form and Interpretation. 47 
 
 •context otherwise requires, " acceptance " means an § 17. 
 
 acceptance completed by delivery or notiiication. As to 
 
 such delivery or notification, see sect. 21, post. 
 
 Subject to the provisions of the Act as to acceptance 
 for honour (sects. 65 — 68), post, and to the special case 
 provided for by sect. 63 of the Companies (Consolidation) 
 Act, 1908 (8 Edw. 7, c. 69), post, p. 410, it is clear law, 
 both in England and Scotland, that no person other than 
 the drawee can be liable as acceptor of a bill (I). 
 
 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 (m) . 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 (n). 
 
 It is to be noted that Lindus v. Bradwell (Illustration 9) 
 was decided before the Acts which required an acceptance 
 to bo signed by the acceptor (o) ; but the Court seems to 
 rest on 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 (p) . 
 
 In Mason v. Rumse^/, 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 (q). 
 
 But this case was decided before the 19 & 20 Vict. c. 97, 
 
 s. 6, which required an acceptance to be signed by the 
 
 (I) Steele v. M'Kinlay (1880), 5 App. Cas. 754, and cases supra. 
 
 (tn) Cf. Alexander v. Sizer (1869), L. R. 4 Ex. at p. 105. 
 
 (n) Polhill v. Walter (1832), 3 B. & Ad. 114; West London Sank 
 v. Kitson (1884), 13 Q. B. D. 360, C, A. 
 
 (o) See 19 & 20 Vict. c. 97, ». 6, now repealed and reproduced in 
 this section. 
 
 (p) Lindus v. Bradwell (1848), 5 C. B. at p. 591, per TVTaule, J. 
 Bed qu. now that husband and wife are no longer one legal persona ? 
 
 (g) Mason v. Itnmtey (1808), 1 Camp. 384. Seo contra an 
 American case, Cunningham v. Smithson (1841), 12 Leigh. 32. 
 
48 Bills of Exchange Act, 1882. 
 
 § 17- drawee, and is presumably no longer law. It is clear that 
 the partner who signed would be liable (r). 
 
 Requisites in (2) An acceptance is invalid unless it complies 
 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. 
 
 (b) It must not express that the drawee will 
 perform his promise by any other means 
 than the payment of money (*) 4 
 
 Illustrations. 
 
 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 {he 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 (t). 
 
 4. A bill is drawn on B. for 100Z. B. accepts it, "payable in 
 bills " or " payable in goods." This is invalid (u). 
 
 5. A bill is left with 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 holder's remedy is by action for the 
 conversion of the bill (cc) . 
 
 As to signature of drawee by hand of his agent, see 
 sect. 91, post. .As to the acceptance of a bill, in a set, see 
 sect. 71 (4), post. The first part of clause (a) reproduces 
 
 0) Owen v. Von Uster (1850), 10 C. B. 318. 
 
 («) Cf. New York Negotiable Instruments Law, §§ 220, 221. 
 
 (<) Young v. Glover^ (1857), 3 Jur. N. S. 637, per Ld. Campbell. 
 Spanish bills are sometimes accepted on the back. New York Negoti- 
 able Instruments Law, § 221, requires the acceptance to be on the 
 face of the bill. 
 
 (u) Russell v. Phillips (1850), 14 Q. B. 891; cf. Boehm v. Garaias 
 (1807), 1 Camp. 425, n.; and see sect. 3 (2), ante. When the time 
 of payment comes, the holder may, of course, accept goods or bills in 
 satisfaction of the debt due to him. Cf. sect. 19 (2) (b), post. 
 But see sect. 223 of the New York Negotiable Instruments Law. 
 
 (a) Jeune v. Ward (1818), 1 B. & Aid. 653, at p. 660. But note 
 sect. 53, post, under which a bill may operate in Scotland as an 
 assignment of funds in hands of drawee. 
 
Form and Interpretation. 49 
 
 the effect of the repealed 19 & 20 Vict. c. 97, s. 6, which § 17. 
 
 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 sufficient acceptance, and 
 which was passed to override the case of Hindhmigh v. 
 Blakey, where such an acceptance was held insufficient (y) . 
 
 As to cancellation of acceptance, see sect. 21 (1), post. 
 
 At common law a verbal acceptance was valid (z), and 
 New York Negotiable Instruments Law, §§ 222, 233, 
 makes an unconditional promise in writing to accept 
 equivalent to acceptance, if the bill be taken on the faith 
 of it. 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. Some of the continental codes (e.g., the 
 Spanish Code) require the precise term " accepted " to be 
 used. 
 
 18* A bill may be accepted ; Time for 
 
 . . . acceptance. 
 
 (1) Belore it has been signed by the drawer, 
 or while otherwise incomplete (a): 
 
 (2) When it is overdue, or after it has been 
 dishonoured by a previous refusal to accept, 
 or by non-payment. 
 
 (3) When a bill payable after sight is dis- Date of 
 
 - , , ill acceptance, 
 
 honoured by non-acceptance, and the drawee after previous 
 subsequently accepts it, the holder in the 
 absence of any different agreement, is entitled 
 
 (jO Hindhaugh v. Blakey (1878), 3 C. P. D. 136; cf. Steele v. 
 M'Kinlay (1880), 5 App. Cas. at pp. 782, 785. 
 
 (z) Bank of Ireland, v. Archer (1843), 11 M. & W. 383. It was 
 even held that the undue mention of a bill by the drawee might amount 
 to an acceptance: see Harvey v. Martin (1808), 1 Camp. 425, n. See 
 Billing v. Devaux (1841), 3 M. & Gr. 565, as to an acceptance by 
 letter. 
 
 (a) See sect. 20, post; London and, South Western Bank v. Went- 
 worth (1880), 5 Ex. D. 96. 
 
 c. 4 
 
60 
 
 Bills of Exchange Act, 1882. 
 
 §18. 
 
 to have the bill accepted as of the date of first 
 presentment to the drawee for acceptance. 
 
 Presumption 
 as to time. 
 
 Illustrations. 
 
 1. A. draws a bill on B., dated January 1st, payable one month 
 after date. The holder presents it fdr acceptance in March. B. 
 accepts. As regards B. this is a valid acceptance of a bill payable 
 on demand (6). 
 
 2. The holder of a bill payable one month after sight presents 
 it to the drawee for acceptance. Acceptance is refused. A week 
 after it is re-presented, and accepted. The acceptance is 
 valid (c). 
 
 Sub-sect. (3) was added in committee. It accords with 
 mercantile practice, and was intended to secure that, apart 
 from special agreement, the holder should be put, as far as 
 possible, in the same position as if the bill had not been 
 dishonoured. It has been adopted by § 226 of the New 
 York Negotiable Instruments Law. 
 
 Unless the contrary appear by its terms, a bill of 
 exchange is prima facie deemed to have been accepted 
 jbefore maturity and within a reasonable time after its 
 issue, but there is no presumption as to the exact time of 
 acceptance (d). For example, B. accepts, without dating, 
 a bill drawn payable three months after date. He attains 
 his majority the day before the bill matures. This is 
 psimd facie evidence that B. accepted it while an 
 infant (d) . 
 
 General 
 and qualified 
 acceptances. 
 
 Qualified 
 acceptances. 
 
 19. (1) An acceptance is (a) general or (b) 
 qualified. 
 
 (2) A general acceptance assents without quali- 
 fication to the order of the drawer. A qualified 
 acceptance in express terms varies the effect of 
 the bill as drawn (<?). 
 
 (b) Mutford v. TValcot (1698), 1 Ld. Kaym, 574; and sect. 10 (2) 
 
 (c) Wynne v. Bailees (1804), 5 East, 514. 
 
 (d) Roberts v. Bethell (1852), 12 C. B. 778. 
 
 (4 New York Negotiable Instruments Law, § 227, and cases cited 
 in Crawford') edition. 
 
Form and Interpretation. 51 
 
 In particular an acceptance is qualified which § 19. 
 is — 
 
 (a) conditional, that is to say, which makes Conditional. 
 payment by the acceptor dependent on the 
 fulfilment of a condition therein stated : 
 
 Illustrations. 
 
 1. The drawee of a bill accepts it, "Accepted — payable on giv- 
 ing up bills of lading for clover per ship Amazon " (/) . 
 
 2. Or he accepts it, " Accepted— payable when in funds "(g). 
 3- A. 'draws a bill on B., payable to himself or order. B., when 
 
 accepting it, writes over his acceptance the words " in favour of 
 A. only," and the words "or order " are struck out. This is not 
 a qualified acceptance, and the negotiability of the bill is not 
 restricted (h) . 
 
 (b) partial, that is to say, an acceptance to pay Partial. 
 part only of the amount for which the bill is 
 drawn : 
 
 Illustrations. 
 
 1. Bill drawn on B. for 100?. B. accepts it as to 501. (i). 
 
 2. Bill drawn on B. for 100?. B. accepts it, payable half in 
 money, half in goods. This is valid as a qualified acceptance 
 ior,50Z. (jfe). 
 
 (c) local, that is to say, an acceptance to pay Particular 
 only at a particular specified place : 
 
 An acceptance to pay at a particular place is a 
 general acceptance, unless it expressly states 
 that the bill is to be paid there only, and not 
 elsewhere (7) : 
 
 (/) Smith v. Vertue (1860), 30 L. 3. C. P. 56. 
 
 (gr) Ibid., and Julian v. Shobrooke (1753), 2 Wils. 9. 
 
 (Ji) Decroix v. Meyer, (1891) A. C. 520, II. L. The words written 
 "by the acceptor might be taken as a mere memorandum ; aliter, if they 
 had run " accepted in favour of A. only." 
 
 (i) Cf. Wegerslofe v. Keenc (1709), 1 Stra. 214; and see 
 sect. 44 (2), post. 
 
 (&) Petit v. Benson (1697), Comberb. 452; cf. Rowe v. Young 
 (1820), 2 Bligh, H. I>. at p. 409; 2 B. & B. 165. 
 
 (V) Cf . New York Negotiable Instruments Law, § 228, and notes in 
 •Crawford's edition. 
 
 4(2) 
 
52 Bills of Exchange Act, 1882. 
 
 § 19. Illustrations. 
 
 : 1. The drawee of a bill accepts it "payable at Messrs. Smith & 
 
 Co.," his bankers. This is a general acceptance (to) . 
 
 2. The drawee of a bill accepts "it "payable at the Union Bank 
 and not elsewhere," or "payable only at the Union Bank." This 
 is a qualified acceptance (to) . 
 
 3. Bill accepted in London, payable at the X. Bank, Kandy, in 
 Ceylon, and dishonoured. This is a general acceptance, and the 
 acceptor may be sued in England (o). 
 
 Time. (d) qualified as to time (p) : 
 
 Illustrations. 
 
 1. A. draws a bill on B., payable two months after date. B. 
 accepts it, payable six months after date (q). 
 
 2. B. accepts a bill drawn on him, "on condition that it be 
 renewed," for six months (r) . 
 
 Some of (e) the acceptance of some one or more of the 
 
 drawee-. drawees, but not of "all. 
 
 Illustration. 
 
 Bill drawn on B., X., and T. B. accepts. X. and T. refuse to 
 accept. This is a qualified acceptance («). 
 
 By sect. 44, post, the holder may refuse to take a 
 qualified acceptance. If he takes it, he must give notice 
 to the drawer and indorsers, who (except in the case of a 
 partial acceptance) may decline to be bound by it. The 
 continental codes admit a partial acceptance, but make 
 any other condition equivalent to a refusal to accept (t) . 
 As to the effect of this conflict of laws, see sect. Y2, post. 
 An acceptance is, whenever possible, to be construed' as 
 
 (m) Cf. BaUtead v. Skelton (1843), 5 Q. B. 86, Ex. Oh. 
 
 (n) Ibid. 
 
 (o) Ex p. Hayward (1887), 3 T. L. E. 687. 
 
 (p) Thfe validity of such an acceptance must of course be subject to 
 the provisions of the Stamp Acts. 
 
 (q) Russell v. Phillips (1850), 14 Q. B. 891; cf. Fanshawe v. Peet 
 (1857), 26 L. J. Ex. 314. 
 
 (r) Ibid. 
 
 (s) Marius, No. 16; New York Draft Code, § 1784; Nouguier, 
 § 451. 
 
 (fi See German Exchange Law, Art. 22; French Code, Art. 124; 
 Netherlands Code, Art. 120. 
 
Form and Interpretation. 53 
 
 general, not qualified; and a mere memorandum 1 , such aa § 19. 
 a wrong due date, inconsistent with such construction, has ~ 
 
 been ■ rejected as being no part of the acceptance (w) . 
 Whether acceptance is general or qualified is a question of 
 law (#) . 
 
 In an action by holder against acceptor, Byles, J., 
 says: " The simple meaning of an acceptance is ' I will 
 pay.' So translating the word ' accepted ' what is meant 
 by saying ' accepted payable on giving up bill of lading ' ? 
 It is impossible, I think, to contend that this is not a con- 
 ditional acceptance. Then it is said that this being a 
 conditional acceptance, the bill of lading must be handed 
 over to the acceptor on the day when the bill falls due 
 [and if not, that the acceptor is discharged]. Now, it 
 seems to me that this is not so, but that the qualification 
 merely qualifies the acceptor's obligation throughout the 
 whole extent of that obligation; and that, as between the 
 holder and the acceptor, that obligation exists for six years 
 at all events " (jy). See further sect. 52 (2), post. 
 
 As to partial acceptances, see further sect. 44 (2), post. 
 
 Sub-sect. (2) (c) reproduces the effect of the repealed 
 1 & 2 Geo. 4, c. 78, which was passed to override the case 
 of Ronfe v. Young, where it was held that an ordinary 
 acceptance payable at a banker's was a qualified accept- 
 ance (z). See further sects. 44, 45 (4), and 52 (2). 
 
 Tho particular cases specified in sub-sect. (2) do not 
 profess to be exhaustive. Where a bill was drawn pay- 
 able " in effective " an acceptance payable in " denaros " 
 was held to be qualified (a) . 
 
 The continental codes admit partial, but prohibit con- 
 ditional acceptances. < ' 
 'This section has no application to notes: see sects, 87 
 and 89. 
 
 («) Vanshawe v. Feet (1357), 26 L. J. Ex. 314; cf. Stone v. 
 Metcalfe (1815), 4 Camp. 217; Fiteh v. Jones (1855), 5 E. & B. at 
 p. 246; Becroix v. Meyer, (1891) A. C. 520, H. L. 
 
 (x) Sproat v. Matthews (1786), 1 T. R. 182. 
 
 (v) Smith v. Vertne (1860), 30 L. J. C. P. at p. 60. 
 
 ( Z ) Rowe v. Young (1820), 2 Bligh, H. L. 391; 2 B. & B. 165. 
 The whole question of qualified acceptances is here discussed at length. 
 
 (a) Boehm v. Garcias (1808), 1 Camp. 425, n.; but qu. if such 
 an acceptance would not be invalid under sect. 17 (2) (b)? 
 
54 
 
 Bills of Exchange Act, 1882. 
 
 §20. 
 
 Inchoate 
 
 instruments 
 or blank 
 
 signatures. 
 
 20. (1) Where a simple signature on a blank 
 stamped paper is delivered b)' the signer in order 
 that it may be converted into a bill (6), it operates 
 as a prima facie authority to fill it up as a com- 
 plete bill for any amount the stamp will cover (c), 
 using the signature for that of the drawer (d), or the 
 acceptor(c), oranindbrser(/); and, in like manner, 
 when a bill is wanting in any material particular, 
 the person in possession of it has a prima facie 
 authority to fill up the omission in any way* he 
 thinks fit (ff). 
 
 (2) In order that any such instrument when 
 completed may be enforceable against any person 
 who became a party thereto prior to its comple- 
 tion, it must be filled up within a reasonable 
 time(h), and strictly in accordance with the autho- 
 rity given (»'). Reasonable time for this purpose 
 is a question of fact. 
 
 Provided that if any such instrument after 
 completion is negotiated to a holder in due course 
 it shall be valid and effectual for all purposes in 
 his hands, and he may enforce it as if it had been 
 
 (6) Baxendale v. Bennett (1878), 3 Q. B. D. at p. 531, C. A.: 
 Smith v. Prosser, (1907) 2 K. B. at p. 753, C. A. 
 
 (o) Swan v-. N. B. Australasian Co. (1863), 2 II. k. C. at p. 184; 
 32 L. J. Ex. 273. 
 
 (d) Colli* v. Emmet (1790), 1 H. Bl. 313. 
 
 (e) Molloy v. Delves (1831), 7 Bing. 428. 
 
 (jf) Foster v. Machinnon (1869), L. 11. 4 C. P. at p. 712; Glenie 
 v. Bruce Smith, (1908) 1 K. B. 263, C. A.; as explained, Shaw. v. 
 Holland find A'eal, (1913) 2 K. B. 15, C. A. Of. Sussellv. Zangstnfe 
 (1780), 2 Do'ugl. 514, 516; "the indorsement on a blank < note , is a 
 letter of credit for an indefinite sum," per Lord Mansfield. 
 
 (g) Crutchly v. Mann (1814), 5 Taunt. 529; and eases, supra; of. 
 Hew York Negotiable Instruments Law, § 33. 
 
 (K) Temple v. Pullen (1853), 8 JExeL 389; Montague v. Perkins 
 (1S53), 22 L. J. C. P. 187. 
 
 (i) Awde v. Dixon (1851), 6 Exch. 869; Uanbury v. Lovett (1868), 
 18 L. T. N. S. 366; OaMey v. Boidton (1888), 5 Times L. R. 60, C. A. 
 
Form and Interpretation. 85 
 
 filled up within a reasonable time and strictly in § 20. 
 accordance with the authority given (k). 
 
 Illustrations. 
 
 1. Bill drawn payable to or order. Any holder for 
 
 value may write his own name in the blank, and sue on the 
 bill (2). 
 
 2. B., who is indebted to 0., gives him a blank acceptance for 
 1001. 0. dies. If C.'s administrator fills up the paper as a bill 
 payable to drawer's order, and inserts his own name as drawer, 
 he can enforce payment thereof against the acceptor (to). 
 
 3. B., who is indebted to C, gives him a blank acceptance for 
 100Z., and then dies. 0. may fill in his own name as drawer and 
 payee after B.'s death, and recover the amount fVofn B.'s 
 estate (w) . 
 
 4. B., having authority to do so, gives a blank acceptance for 
 100Z. in the name of his firm. It is filled up after B.'s death. 
 The surviving partners are liable (o). 
 
 5. B. gives C. a blank acceptance to accommodate him, and 
 without receiving value. After B.'s death it is filled up and dis- 
 counted with ~D., who sees it filled up. D. cannot recover the 
 amount from B.'s estate (p). 
 
 6. B. gives a blank acceptance to a money-lender, who fills it 
 up as a bill payable to drawer's order, inserting a fictitious sig- 
 nature as that of drawer and indorser. If the bill afterwards 
 gets into the hands of a holder in due course he can recover 
 from B. (q). 
 
 7. B. puts a blank acceptance of his own in his desk. It is 
 stolen, and then filled up as a bill. Even a holder in due course 
 cannot recover from B., for he never delivered the inchoate 
 instrument for the 'purpose of conversion into a bill (r) . 
 
 8. B. gives a blank acceptance in the name of his firm to C. 
 without the authority of his co-partners. C. gives the bill in this 
 state to his own partner for a private debt, who then fills in the 
 
 (k) Sehuliz v. Astley (1836), 2 Bing. N. C. 544; Foster v. 
 Mackinnon (1869), L. B. 4 C. P. at p. 712; of. New York Negotiable 
 Instruments Law, § 33; and cases cited in Crawford's edition. 
 
 (1) Crutchly v. Mann (1814), 5 Taunt. 529. 
 
 (m) Seard 'v. Jackson (1875), 34 L. T. N. S. 65. 
 
 («) Carter v. White (1882), 20 Ch. D. 225; affirmed (1883), 25 
 Ch. D. 666, C. A., where it was held that a surety for the acceptor, 
 not party to the bill, was not discharged. 
 
 (o) Usher v. Dauncey (1814), 4 Camp. 97. 
 
 (/) Hatch v. Searles (1854), 2 Sm. & G. 147; 24 L. J. Ch. 22; 
 approved France v. Clark (1884), 26 Ch. D. 257, at.p; 262; C. Ai 
 
 ( ? ) Sehuliz v. Astley (1836), 2 Bing. N. C. 544; London f.S.SW. 
 Sank v. Wentworth (1880), 5 Etf. D. 96. 
 
 (r) Baxendale v. Bennett (1878), 3 Q. B. D. 525, C. A. 
 
56 Bills op Exchange Act, 1882. 
 
 § 20. name of O.'s firm as drawer and payee. O.'s firm cannot recover 
 on this bill from B.'s firm(s). 
 
 9. B. and X. sign as makers a joint and several note, with 
 blanks for date and payee's name. B. signs on condition that the 
 note shall only be issued if Y. also will join as a maker. Y. 
 refuses to join. X., who is in possession of the note, represents 
 to plaintiff that he has authority to issue it. He fills in plaintiff's 
 name a^ payee, and transfers the note to him for value. Plaintiff 
 cannot recover from B. (<). 
 
 10. B. signs as acceptor a bill on a 6d. stamp, with the amount 
 left blank. In the margin is 41. This is fraudulently altered to 
 40Z., and the bill is filled up for forty pounds. A holder in due 
 course can recover 401. from B. (u)i 
 
 11. B., a bankrupt, gives a blank acceptance. It is filled up 
 and negotiated after his discharge. The holder can recover, for 
 it did not constitute a provable debt (»). 
 
 12. In 1840 B. gives a blank acceptance on a 5s: stamp to A. 
 to accommodate him. In 1852 A. fills up the document as a bill 
 for 2001. and signs as drawer. He then negotiates it to a holder 
 in due course. The holder can recover from the acceptor (y). 
 
 13. An incomplete bill (no drawer's signature) which is sent 
 by railway and lost, is not a security for the payment of money 
 within the meaning of the Carriers Act(z). 
 
 14. Document in the form of a bill payable to drawer's order, 
 but not signed by the drawer, is accepted by B., and returned 
 by him to the proposed drawer, who dies before signing it. The 
 drawer's executors cannot sue B. on this instrument, but it may 
 be evidence of a debt from B. to the drawer's estate (a). 
 
 15. A drawer in Bavaria signs a bill with the amount and date 
 left in blank. His agent in England fills up the blanks, and in 
 fraud of the drawer indorses it away for a private debt. A holder 
 in due course can recover on it, and it is. not material that the 
 bill bears only a foreign bill stamp (&). 
 
 16. B., intending to borrow 152. from X., signs a blank stamped 
 paper, and authorises X. to fill it up as a note for 151. payable 
 to X. X., instead of so doing, fills up the document as a pro- 
 missory note for 302. payable to 0., and then hands it to C, 
 who takes it in good faith and for value. This is not a negotia- 
 
 (s) Hogarth v. Latham (1878), 3 Q. B. D. 643, C. A. 
 
 (*) Awde v. Dixon (1851), 6 Exch. 869. 
 
 («) Garrard v. Lewis (1882), 10 Q. B. D. 30. 
 
 (*) Goldsmid v. Hampton (1858), 5 C. B. N. S. 94; 27 L. J. C. P. 
 286; cf. Ex parte Hayward (1871), L. B,. 6 Ch. 546. 
 
 (y) Montague v. Perkins (1853), 22 L. J. C. P. 187. 
 
 (z) Stoessiger i. 8. E. Railway Co. (1854), 3 E. & B. 549; but 
 such an instrument, if in the hands of the drawer, might be a security 
 for money within the 24 & 25 Vict. c. 96: Reg. v. Bowerman, (1891) 
 1 Q. B. 112. 
 
 (a) Lawson's Exors. v. T^atson (1907), 9 F. 1353 (Scotland). 
 Qu. if executors could complete by signing, as drawers? 
 
 (S) Cf. Barker v. Sterne (1854), 9 Exch. 684. 
 
Form and Interpretation. 67 
 
 tion of the note to a holder in due course, and C. cannot 8 20 
 recover (c). Sed qtwere? '- — 
 
 17. B, signs, as maker, a blank stamped paper, and gives it to 
 X., authorising him to fill it up as a note for 230?., to secure an 
 advance which C. is to make to X. X. fraudulently fills it up as 
 a note for 1,0001. payable to 0., who has in good faith advanced 
 1,0002. B. is estopped from setting" up X.'s fraud, and 0. is 
 entitled to recover the 1.000Z. from B. (d). 
 
 18. B., in South Africa, signs his name on a blank unstamped 
 paper, on which is a lithographed form of a promissory note, and 
 •hands it to T., his agent, to be retained until further instruc- 
 tions. T. fraudulently fills up the blanks and negotiates the note 
 to 0., who in good faith gives full value to T. The instrument 
 is stamped in England as a foreign note, and the maker is sued 
 thereon by 0. He is not liable, for he did not deliver the docu- 
 meut for the purpose of being filled up and negotiated (e). 
 
 19. B., the acceptor of a bill, is asked to renew it. He 
 accordingly signs his name on the back of a blank stamped 
 hill form. This is an authority to fill it up as a bill making B. 
 liable as an indorser, not as acceptor (/) . 
 
 20. A. draws a cheque to bearer, filling up the space for 
 figures with 21., but leaving in blank the space for showing 
 the amount in words. A confidential clerk fills in the space for 
 words " one hundred and twenty pounds," and alters the 21. into 
 1201. If the clerk misappropriates the cheque and gets it cashed, 
 the bank can debit A.'s account with 1201. (g). 
 
 This section is supplemented by sect. 12, ante, which 
 provides for the special case of a bill payable after date, or 
 an acceptance payable after sight being issued undated. 
 See " holder " defined by sect. 2, and " holder in due 
 •course " by sect. 29, post, and note that it enters into the 
 latter definition that the bill is " complete and regular on 
 the face of it "; if not, caveat emptor. 
 
 In Hatch v. Searles (h), Vice-Chancellor Stuart says: 
 *' As to a bond fide holder the question as to the effect of 
 the acceptance or indorsement having been ■written on a 
 blank piece of paper can be of no importance, unless he 
 
 (c) Herdman v. Wheeler, (1902) 1 K. B. 361. See a distinction 
 suggested between the payee of a note and a holder in due course. 
 But see next case. 
 
 (d) Lloyds' Bank v. Cooke, (1907) 1 K. B. 794, O. A., doubting 
 and distinguishing Herdman v. Wheeler, (1902) 1 K. B. 361. 
 
 (e) Smith v. Prosser, (1907) 2 K. B. 735, C. A. 
 
 (/) Belfast Banking Co. v. Keown (1898), 33 Ir. L. T. R. 95, 
 Palles, C.B. 
 
 (ff) London Joint Stock Bank v. Macmillan, (1918) A. C. 777, H. L. 
 
 (h) Match v. Searles (1854), 2 Sm. & G. 147; approved France v. 
 Clark (1884), 26 Ch. D. 257, at p. 262, O. A. 
 
vfi8 Bills of Exchange Act, 1882 
 
 '§20. can be fastened with notice of that imperfection. If the- 
 holder has notice of the imperfection he can be in no- 
 better situation than the person who took it in blank, as 
 ( to any right against the acceptor or indorser who gave- 
 
 it in blank. But if Jie be a bond fide holder without 
 notice, he' must have taken the negotiable instrument in 
 a perfect shape and in terms a complete contract." 
 
 An instrument which is wanting in some one or more- 
 of the requisites of a complete bill is in effect a transfer- 
 able authority to create a bill, and while incomplete is 
 subject to the ordinary rules of law relating to authori- 
 ties, e.g., an authority coupled with an interest is not 
 revoked by the death of donor or donee, while an authority 
 not coupled with an interest is revoked by the donor's 
 death; see Illustrations 2 to 5. The liabilities of the 
 . parties accrue from the time when the instrument is issued 1 
 in ,a complete form, and not from the time when their 
 signatures are attached' (i) . 
 
 The section refers only to blank signatures, &c. on 
 stamped paper. Incomplete instruments on unstamped! 
 paper are outside the section, and are governed by the 
 ordinary common law rules as to estoppel. See, e.g. y 
 Illustration 18. 
 
 The New York Negotiable Instruments Law; § 34, in 
 order to give effect to the principle of such cases as- 
 Baxenddle v. Bennett (Illustration 7), enacts that " where- 
 a negotiable instrument has not been delivered, it will not, 
 if completed and negotiated without authority, be a valid 
 contract in the hands of any holder, as against any person 
 whose signature was placed thereon before delivery." 
 
 Delivery to 21. (1) Every contract on a bill, whether it 
 
 complete \ / j ? 
 
 contract, be the drawer's, the acceptor's, or an indorser'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- 
 
 (0 Montague v. Perkins (1853), 22 L. J. C. P. 187 (Statute of 
 Limitations); Eco parte Sayward (1871), L. R. 6 Ch. 546 (petitioning- 
 creditor's debt). 
 
Form and Interpretation. 8t> 
 
 ing to the directions of the person entitled to the § 21. 
 bill that he has accepted it, the acceptance then Delivery. 
 becomes complete and irrevocable (/). 
 
 Illustrations. 
 
 1. B., who owes C. 1001., makes a note for the amount payable 
 to C. B. dies, and the note is afterwards found among his papers. 
 C. 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 till his death, and 
 then hand it to the servant, if still in his service. B. dies, and 
 the solicitor hands the note to the servant. The servant can 
 (perhaps) prove for the amount in the administration of B.'s 
 estate (I) . 
 
 3. B. makes a note in favour of 0., and delivers it to a stake- 
 holder {e.g., trustee under composition deed). 0. thereby 
 acquires no property in the note (to) . 
 
 4. C, the holder of a bill, specially indorses it to D., and 
 transmits 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. C. (probably) can revoke the transac- 
 tion and cancel his indorsement to D. (m). 
 
 5. C, the holder of a bill, specially indorses it to D., and 
 incloses it in 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 remains in C. (o). 
 
 6. By the regulations of the English Post Office, a letter once 
 posted cannot be reclaimed. If, then, the indorsee of a bill 
 authorize 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 bill is posted (p) . 
 
 (/) Cox v. Troy (1822), 5 B. & Aid. 474; Nouguier, § 551. The 
 drawee, unlike the drawer or indorser, has no property in the hill, 
 therefore less is required to make him attorn to the holder. By 
 German Exchange Law, Art. 21, an acceptance once written cannot 
 be cancelled. 
 
 (k) Cf. Bromage v. Lloyd (1847), 1 Exch. 32. 
 
 (I) Re Richards (1887), 36 Ch. D. 541; criticised Re Whitalcer 
 (1889), 42 Ch. D. 119, at p. 125, O. A. 
 
 <m) Cf. Latter v. White (1872), L. R. 5 H. L. 578. 
 
 (n) Briiid v. Hampshire (1836), 1 M. & W. 365; Muller v.'Pmdir 
 (1873) 55 New York R. 325. Quaere, since the judicature Acts? 
 
 (o) Cf. Arnold v. Cheque Rank (1876), 1 C. P. D. at p. 584. 
 
 («) Ex parte Cote (1873), L. R. 9 Ch. 27; Sichel v. Borch (1864), 
 2 H. & C. 954; 33 L- J- Ex. 179; Kleinwortv. Co-mptoir D'Escompte, 
 (1894) 2 Q. b! at p. 158 (crossed cheque sent'by post from Barcelona 
 to England and stolen in transit). But if there be no authority, 
 
60 
 
 Bills of Exchange Act, 1882. 
 
 § 21. 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 D. 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 (q). 
 
 8. A bill 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 
 next day delivers the dishonoured bill back to the holder. This is 
 no acceptance; the drawee was "entitled to cancel it(r). 
 
 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. («). 
 
 10. In reply to a letter requesting payment of a debt, the 
 debtor sends by post to his creditor a cheque for the amount. 
 The cheque is stolen in the post, and the thief gets it cashed. 
 The posting is a good delivery to the payee, and the cheque 
 operates as payment (t) . 
 
 By sect. 2, ante, " delivery " means transfer of posses- 
 sion, 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 " (u). " 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 or to the agent of the indorsee. If the indorser 
 
 express or implied, to send by post, the instrument is so sent at 
 sender's risk: Pennington v. Crossley (1897), 13 Times L. R. 513, 
 C. A. As to the usual practice to remit money by crossed cheque, 
 and not by posting bank notes, see Mitchell Henry v. Norwich Union 
 (1917), 34 T. L. R. 77. 
 
 (q) Smith v. Mundy (1860), 29 L. J. Q. B. 172; cf. Medtnayne 
 v. Burton (1860), 2 L. T. N. S. 324. 
 
 (>■) Bank of Van Diemen's Land v. BanJc of Victoria (1871), L. R. 
 3 C. P. S26. 
 
 (s) Lysaght v. Bryant (1850), 9 C. B. 46. 
 
 (0 Norman v. SiaTcetts (1886), 3 T. L. R. 182, C. A.; Thairlwall 
 v. Great Northern Railway, (1910) 2 K. B. 509 (dividend warrant 
 sent by post). If the lost draft is not cashed the payee's remedy 
 is under sects. 69 and 70, post. 
 
 («) Abrey v. Crux (1869), L. R. 5 O. P. at p. 42. See, too, 
 Denton v. Peters (1870), L. R. 5 Q. B. 475. 
 
Fokm and Interpretation. 61 
 
 delivers them to his own agent, he can recover them; if § 21. 
 to the agent of the indorsee, he cannot recover them " (x). 
 
 Illustrations 6 and 10 show that the Post Office is the Post Office, 
 agent of the person to whom the hill or note is posted if 
 there be express or implied authority to send by post, but 
 if there be no such authority the Post Office is the agent 
 of the sender. 
 
 (2) As between immediate parties, and as 
 regards a remote party other than a holder in 
 due course (y), the delivery — 
 
 (a) in order to be effectual must be made By whom, 
 either by or under the authority of the 
 party drawing, accepting, or indorsing, as 
 
 the case may be («) ; 
 
 (b) may be shown to have been conditional or Conditional 
 
 . . 1 delivery. " 
 
 tor a special purpose only, and not for the 
 purpose of transferring the property in the 
 bill (a). 
 
 But if the bill be in the hands of a holder in 
 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 
 
 ,, . i-i as to delivery. 
 
 of 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 (b). 
 
 (x) Ex parte Cote (1873), L. R. 9 Ch. 27, where the question was 
 the effect of the French post office regulations. 
 
 (y) See " holder in due course " defined by Beet. 29, and " delivery " 
 by sect. 2. 
 
 (z) Bromagev. Lloyd (1847), 1 Exch. 32; of. Re Richards (1887), 
 36 Ch. D. 541; as criticised Re Whitaker (1889), 42 Oh: D. 119, C. A. 
 
 (a) Bell v. Lord Irtgestre (1848), 12 Q. B. at p. 319; cf. Salmon v. 
 Webb (1852), 3 H. L. Ca. at p. 518; Castrique v. Buttigieg (1855), 10 
 Moore, P. C: at p. 108; JDrttiff r. Parker (1868), L. R. 5 Eq. at 
 p. 137; Benton v. Martin (1873), 52 New York R. at p. 574. 
 
 (6) Cf. New York Negotiable Instruments Law, § 35. 
 
6 ? Bills of Exchange Act, 1882. 
 
 § 21. Illustrations. 
 
 ~ . 1. The 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 itestator. D. cannot sue on the bill (c). 
 
 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 0. X. delivers it to C, who receives it bond fide and for 
 value. 0. acquires a good title, and can sue the drawer, for 
 X. is ostensibly the drawer's agent (d). 
 
 3. A. draws a cheque payable to bearer, intending to pay it 
 to X. . It is stolen from his desk before he issues it, and is 
 subsequently negotiated to C, who takes it for value and without 
 notice. 0.. (perhaps) acquires a good title and can sue A. (e). 
 
 4. B. makes a note payable to C, who sues him on it. B. 
 can defend himself by showing that the note was delivered to 
 C. ' 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. 0., the holder of a bill, indorses it in blank and hands it to 
 D. on the express condition that he shall forthwith retire certain 
 other bills forthwith. He does not do so. D. cannot sue C, and 
 if he sue the acceptor, the latter may set up the jus tertii (g). 
 
 6. C, the holder of a bill, indorses it specially to D., in order 
 that he may get it discounted for him. D., in breach of trust, 
 negotiates the bill to E. If he take the bill bond fide and for 
 value, he acquires a good title, and can sue all the parties thereto. 
 If he do not so take it, he cannot sue 0.; and if he sue the 
 acceptor, the latter may set up that the bill is O.'s (h) ; further, 
 0: ; can bring an action against E. to recover the bill or the 
 proceeds (i) . 
 
 7. C, the payee of a bill, indorses it to D. D. sues C. as 
 indorser. 0. may show that he and D. were jointly interested- 
 
 (e) Bromage v. Lloyd (1847), 1 Exch. 32. See this case distin- 
 guished, Giddings vi Giddings (1878), 31 Amer. R. 682. 
 
 (<2) Watson v. Russell (1862), 3 B, & S. 34; 31 L. J. Q. B. 304;, 
 affirmed, 5 B. & S. 968, Ex. Ch.; 11 L. T. N. S. 641; and cf. Cluttoa . 
 v. Attenborough, (1897) A. C. 90, H. L.; Talbot v. Von Boris, (1911) 
 1 K. B. 854, at p. 862, C. A.; but see Ilerdman v. Wheeler, (1902) 
 1 K. B. 361, as to the original payee of a promissory note. 
 
 (e) Ingham v. Primrose (1859), 7 C. B. N. S. at p. 85; 28 L. J. 
 C. P. 294; Kinyon v. Wohlford (1872), 10 Amer. R. 165; but see 
 Baxendale v. Bennett (1878), 3 Q. B. D. 531, C. A. 
 
 (/) Jeferies v. Austin (1725), 1 Stra. 674. 
 
 \g) Bell v. Lord Ingestre (1848), 12 Q. B. 317; cf. Seligman v. 
 Jlutti (1877), 37 L. T. N. S.,488. 
 
 (A) Lloyd v. Howard (1850), 15 Q. B. 995; and cf. Barber v. 
 Ri,ehqrds (1851), 6 Exch. 63. 
 
 (i) Geggerley v. Cuthbert (1806), 2 B. &, P. ST. R. 170; cf. Alsager 
 v. Close (1842), 10 M. & W. 576; MuttyloU Seal v. Sent (1853), 8 
 Moore, P. C. 319. 
 
Form and Interpretation. 68 
 
 In the bill, and that he indorsed to the latter to collect on ioint S 91 
 account (fc). 8 * x ' 
 
 8. B. makes a note for 100Z. payable to 0. or order. 0. sues 
 B. Evidence is admissible to show that the note was given as 
 ■collateral security for a running account, and what the state of 
 that account is (Z) . 
 
 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 (m). 
 
 See "holder in due course," defined by sect. 29. Conditional 
 Where the person to whom a bill is delivered condition- deliTerv - 
 ally 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 
 hill (rc), or if the bill has been collected tire true owner 
 may waive the tort and sue for the proceeds as money 
 received to his use (o) . 
 
 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 bo delivered conditionally to the obligee; the 
 •delivery must be to a third party (p). 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 are substantially those of 
 principal and agent (q) . The person to whom it is de- 
 livered belongs, perhaps, to the class of agents called 
 bailees (r); 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 
 
 (£) Denton v. Peters (1870), L. R. 5 Q. B. 475. 
 
 (Z) Cf. JSx -parte Twogood (1812), 19 Ves. 227; Me Boys (1870), 
 !», R. 10 Eq. 467. 
 
 (jri) Me Richards (1887), 36 Ch. D. 541; but see comments in Re- 
 WMtaTcer. (1889), 42 Ch. D. 119, 125, C. A. 
 
 (») Goggerley v. Cuthbert (1806), 2 B. & P. N. R. 170; Alsager 
 v. Close (1842), 10 M. & W. 576. 
 
 (o) Arnold v. Cheque Rank (1876), 1 C. P. D. at p. 585. See 
 Muttyloll Seal v. Bent (1853), 8 Moore, P. C. 319. 
 
 (j») Per Lord Denman, in Bell v. Lord Ingestre (1848), 12 Q. B. at 
 p. 319. 
 
 (?) Maguire v. Dodd (1859), 9 Ir. Ch. 452. 
 
 (*•) Cf. Lloyd v. Howard (1850), 15 Q. B. at p. 1000, Erie, J.; 
 Manley v. Boycot (1853), 2 E. & B. at p. 56, Ld. Campbell. 
 
64 
 
 Bills of Exchange Act, 1882. 
 
 §21. 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 (s) . But, as- 
 the illustrations show, a remote party may, through 
 absence of consideration, notice of fraud, or other circum- 
 stances, stand on the same footing as an immediate party. 
 Conversely, perhaps, parties who prima facie are imme- 
 diate parties may be shown to be really remote and not in 
 direct relation, as, for instance, when the maker of a note- 
 is induced by the fraud of a third person to make it in 
 favour of a payee who takes it in good' faith and for 
 value (t). 
 Contracts of A bill or note must be in writing, and so, too, must 
 parties to bill f- ne supervening contracts thereon, such as acceptance or 
 in writing. indorsement. It follows that the contracts of the various 
 parties, as interpreted by this Act and by the law 
 merchant, are subject to the ordinary rule as to written 
 contracts (u) . 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 (x); (b) to impeach 
 the consideration for the contract (y); (c) to show that 
 the contract has been discharged by payment, release or 
 otherwise (yy) . Thus — 
 
 1. The mere signature of the holder 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, I, on receiving due notice, will indemnify 
 him (z) . 
 
 2. A. draws a bill in favour of C, and issues it to him 
 for value. A. thereby incurs the ordinary obligations of 
 a drawer. If the bill be dishonoured and C. sue A., oral 
 evidence cannot be admitted to show that A.'s liability as 
 
 (s) Cf . Indian Act, a. 44^ 
 
 It) Lloyds' Bank v. Cooke, (1907) 1 K. B. 794, O. A. See- 
 judgment of Moulton, L.J.; Watson v. Russell (1862), 3 B. & S. 34. 
 
 («) Foster v. Jolly (1835), 1 C. I. & R. 703. 
 
 (») Sect. 21 (2), and oases cited in illustration; also Hitchings 
 v. Northern Leather Co. of America (1914), 20 Com. Cas. at p 28 
 
 (y) Cf. Abrey v. Crux (1869), L. R. 5" C. P. at p. 45. 
 
 (yy) Cf . Morris v. Baron # Co., (1918) A. C. 1 H. L. (oral rescission 
 of written contract), and note se^t. 62, 'post, as to express waiver 
 
 (z) Cf. Suse v. Pompe (1860), 30 L. J. O. P. 75, at p. 80, and! 
 sect. 55. 
 
Form and Interpretation. 65 
 
 drawer was conditional on the performance of certain acts s 31 
 by C, and that C. had not done them (a). — — 
 
 3. Bill drawn in ordinary form. Action by payee 
 against acceptor. Evidence is not admissible to show that 
 it was intended to be paid out of a particular fund which 
 is no longer available (6). 
 
 4. Bill drawn conditionally. Evidence is not ad- 
 missible 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 (c). 
 
 5. B. makes a note payable to C. one month after date. 
 C. sues B. Parol evidence is not admissible to show that 
 it was intended to be payable two months after date (d) . 
 
 6. Bill drawn and accepted in the .ordinary form. Parol 
 evidence is admissible to show that the holder knew that 
 the bill was accepted 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 (e). 
 
 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 \g) . 
 
 9. Action on bill of exchange payable three months 
 after date by indorsee against acceptor. Evidence is not 
 admissible of a contemporaneous oral agreement with the 
 drawer to renew the bill if the acceptor is not in a position 
 to pay it at maturity, even though the indorsee was aware 
 of tho fact when he took the bill (h) . 
 
 (a) Abrey v. Crux (1869), L. R. 5 O. P. 37; cf. sect. 61. 
 
 (6) Campbell v. Hodgson (1819), Gow, 74; cf. Richards v. Richards 
 (1831), 2 B. & Ad. at pp. 454, 455. 
 
 (o) Colehan v. Cooke (1742), Willes, 397; of. sect. 11 (2), ante. 
 
 Id) Cf. Drain v. Harvey (1855), 17 O. B. 257. 
 
 (e) Mwin v. Lancaster (1865), 6 B. & S. 571; Overend v. Oriental 
 Finan. Corp. (1847), 7 H. L. 348; Hubbard v. Gurney (1876), 64 
 New York R. 457. 
 
 (/) Foster v. Jolly (1835), 1 C. M. 4 R. 703. 
 
 \g) Maillard v. Page (1870), L. R. 5 Ex. 312. "If the agree- 
 ment 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 
 Channell, B., at p. 319. 
 
 (K) New London Credit Syndicate v. Neale, (1898) 2 Q. B. 487, 
 C. A.; following Young v. Austen (1869), L. R. 4 O. P. 553. 
 
 c. 5 
 
66 Bills of Exchange Act, 1882. 
 
 §21. 10. Action on a bill for 90L Evidence is not admissible 
 
 "" to show that the acceptor and drawer agreed/that only 60L 
 
 should be paid, and that the payment should be by 
 
 instalments, even though the indorsee is not a holder for 
 
 value (i) . 
 
 11. A promissory note is made payable on demand. 
 Evidence is not admissible to prove an oral agreement 
 that payment should not be enforced till after the maker's 
 death (k) . 
 
 12. C. makes an advance to B. of 500?., and B. subse- 
 quently 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 payment of interest during C.'s life (Z). 
 
 13. Bill drawn in the ordinary form, payable to 
 drawer's order, and accepted. D. writes his name on the 
 back. Parol evidence is not. admissible to show that he 
 intended thereby to guarantee the payment of the bill to 
 the drawer. The Statute of Frauds requires such a guaran- 
 tee to be in writing and signed (m). 
 
 14. A mote made by a company is indorsed by three 
 directors in succession. In an action for contribution 
 evidence is admissible to show that they indorsed as 
 co-sureties, and not as sureties in succession (n) . 
 
 15. Promissory note given in payment for goods 
 supplied to the maker. D. indorses the note as surety, 
 making a verbal agreement with the payee that he is not 
 to be liable if the goods are not equal to sample. Evi- 
 dence if this agreement is not admissible (o) . 
 
 As between immediate parties, a contemporaneous 
 writing (p), or a subsequent written agreement (q), may 
 control the effect of a bill, subject to the same conditions 
 
 (*) Besant v. Cross (1851), 10 O. B. 895. 
 
 (k) Woodbridge v. Spooner (1819), 3 B. & Aid. 233; cf. Stott t. 
 Fairlamb (1883), 52 L. J. Q. B. 420. 
 
 (Z) Sill v. Wilson (1873), L. E. 8 Ch. App. 888, at p. 898. 
 
 (m) Steele v. M'Kinlay (1880), 5 App. Caa. 754, H. L. 
 
 («) fflacdonald v. Whitfield (1883), 8 App. Cas. 733, P. C; of. 
 Batson v. King (1859), 28 L. J. Ex. at p. 328. * 
 
 (o) JSitehings v. Northern Leather Co. of America, (1914) 3 K. B. 
 907. As a fact the maker kept the goods. Semble if he had rejected 
 them D. could have set up total failure of consideration. 
 
 (p) Cf. Brown v. Langley (1842), 4 M. & Gr. 466; Salmon v. 
 Webb (1852), 3 H. L. Ca. 510; Maillard v. Page (1870), L. B>. 6 
 Ex. 312, at p. 319. 
 
 (?) MeManus v. Bark (1870), L. B. 5 Ex. 65. 
 
Form and Interpretation. 67 
 
 that would be requisite in the case of an ordinary contract: § 21. 
 
 but the mere fact that a bill refers to a collateral writing 
 
 or agreement which is conditional in its terms, will not 
 vitiate the bill in the hands of a person who has no notice 
 of its contents (r) . 
 
 Though the terms of a bill or note may not be contra- 
 dicted by oral evidence, yet, as between immediate parties, 
 effect may be given to a collateral or prior oral agree- 
 ment by cross-action or counter-claim. " Evidence," says 
 Byles, J., "maybe 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" (s). 
 
 (r) Jury v. Barker (1858), E. B. & E. 459, See English and 
 American cases reviewed: Taylor v. Curry (1871), 109 Massachusetts, 
 36. > 
 
 (s) Zindleg v. Lacey (1864), 34 L. J. O. P. 7, at p. 9 (written 
 Agreement, prior oral agreement to take up plaintiff's acceptance). 
 For limits of this rule, see Henderson v. Arthur, (1907) 1 K. B. 
 10, C. A. 
 
 5$) 
 
6 ^ Bills of Exchange Act, 1882. 
 
 §23. 
 
 Capacity and Authority of Parties. 
 
 Capacity of 22. (1) Capacity to incur liability as a party 
 to a bill 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 (t). 
 
 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 Scottish equiva- 
 lent of the English term " infant." 
 
 Capacity and Capacity must be distinguished from authority.. 
 
 authority. Capacity means power to contract so as to bind oneself. 
 Authority 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 1 . An indorsement usually con- 
 sists of two distinct contracts, one executed', the other exe- 
 cutory. It transfers the property in the bill, and it also 
 
 (£) New York Negotiable Instruments Law, § 41. 
 
Capacity and Authority. 69 
 
 involves a contingent assumption of liability on the part § 22. 
 of the indorser. 
 
 When laws conflict, capacity is for some purposes Conflict' of 
 determined according to the lex domicilii of the contracting laws - 
 party, but for mercantile purposes it is probably deter- 
 mined by the lex loci contractus (m) . 
 
 The continental codes for the most part draw a dis- 
 tinction 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 Incapacity of 
 in no way diminishes the liability of the other parties one P art y- 
 thereto (x) . 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, Clergyman, 
 has full capacity to contract by bill (,«/) . 
 
 As to convicted felons, see the Forfeiture Act, 1870 Felon - 
 (33 & 34 Vict. c. 23), ss. 8, 14 and 15. 
 
 As to a foreign sovereign who in general can sue but Foreign 
 cannot be sued, unless he chooses to submit himself to the soverei » n - 
 jurisdiction, see post, p. 368. 
 
 At common law a married woman incurred no liability Married 
 by drawing, indorsing, or accepting a bill (z), unless she woman - 
 was a sole trader in the City of London, or unless her 
 husband was civiliter mortuus, or an alien resident abroad. 
 Subject, also, to the like exceptions, her indorsement did 
 not transfer the property in a bill (.a), 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 
 
 («) Cf. Sottomayor v. Be Barros (1877), 3 P. B. 1, at p. 5, O. A. 
 (marriage) ; but as to mercantile contracts, see Westlake's Inter- 
 national Law, 3rd ed. p. 44; Dicey's Conflict of Laws, ed. 2, p. 538. 
 
 (#) Cf. Grey v. Cooper (1782), 3 Dougl. 65; Wauthier v. Wilson 
 (1912), 28 T. L. E. 239, C. A. (joint and several note); German 
 Exchange Law, Art. 3. 
 
 (y) Cf . The Pluralities Act, 1838 (1 & 2 Vict. c. 106), ss. 29, 31 ; 
 L.ewis v. Bright (1855), 24 L. J. Q. B. 191. 
 
 (s) Cannam v. Farmer (1849), 3 Exch. 698, note signed by married 
 woman as widow. , 
 
 (a) Cf. Smith v. Marsack (1848), 18 L. J. O. P. 65. 
 
 (S) Prince v. Brunatte (1835), 1 Bing. N. C. 435. 
 
70 
 
 Bills of Exchange Act, 1882. 
 
 Divorced 
 woman. 
 
 Lunatic or 
 
 drunken man 
 
 Minor or 
 infant. 
 
 such estate (c) ; and if the bill was part of her separate 
 estate, her indorsement transferred it. 
 
 Under the Married Women's Property Act, 1882 (45 & 
 46 Vict. c. 75), as amended by the Married Women's Pro- 
 perty Act, 1893 (56 & 57 Vict. c. 63), a married' woman 
 who draws, accepts, or indorses a bill can be sued thereon 
 as if she were single . But if judgment be obtained against 
 her, the judgment does not bind her personally. It is 
 only available against such separate estate as she may have 
 free from restraint on anticipation (d) . If a married 
 woman signs a bill or note as surety for her husband no. 
 presumption arises that she has done so under undue in- 
 fluence (e) . When a married woman indorses a bill her 
 indorsement of course 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 the Matrimonial Causes Act, 1857 
 (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, there- 
 fore, that neither lunacy nor drunkenness can be set up 
 against a holder in due course (g) . Complete drunken- 
 ness is a defence against an immediate party with 
 notice (h) . 
 
 An infant incurs no liability by drawing, indorsing, or 
 accepting a bill, even if he represents himself to be of 
 full age (i). Thus: — 
 
 1. B., an infant, within three months of attaining his 
 
 (e) McHenry v. Davies (1870), L. K. 10 Eq. 88. 
 
 (<f) Wood v. Lewis, (1914) 3 K. B. 73, C. A. (duration of re- 
 straint); as to form of judgment, see Seton on Decrees, ed. 7, p. 847; 
 as to dissolution of marriage, see Barnett v. Howard, (1900) 2 Q. B. 
 784, C. A. (restraint operating on bill accepted before divorce) ; as 
 to ante-nuptial debts, see Robinson v. Lynes, (1894) 2 Q. B. 577, 
 discussed Lush's Husband and Wife, ed. 3, p. 192. 
 
 (e) Howes v. Bishop, (1909) 2 K. B. 390, C. A. 
 
 (/) PoMocIc on Contracts, ed. 7, p. 91. As to proving against a 
 lunatic's estate on a voluntary note, see Me Whitaker (1889), 42 Ch. D. 
 119, C. A. As to revocation of agent's authority by notice of prin- 
 cipal's lunacy, see Drew v. Nmin (1879), 4 Q. B. D. 661, C. A. 
 
 (jg) Imperial Loan Co. v. Stone, (1892) 1 Q. B. 599, O. A. 
 
 (A) Gore v. Gibson (1845), 13 M. & W. 623; cf. Tyler v. Maxwell 
 (1892), 30 Sc. L. R. 583, 585, Court of Session (acceptance given 
 when drunk for losses at cards). 
 
 (i) Infants Relief Act, 1874 (37 & 38 Vict. c. 62); Levene v. 
 Brougham (1909), 25 T. L. R. 265, C. A. (prom, note); Leslie, 
 Ltd. v. Shiel, (1914) 3 K. B. 607, C. A. (loan), and if the substance 
 
Capacity and Authority. 71 
 
 majority, accepts a bill payable six months after date. He §22. 
 
 ratifies the transaction on attaining his majority, and the 
 
 bill is negotiated. B. is not liable on his acceptance (k). 
 
 2. B., after attaining his majority, accepts a bill to pay 
 a debt contracted before his majority. The bill is in- 
 dorsed to a holder in due course. The holder can sue 
 
 3. B., after attaining his majority, accepts a bill to 
 compromise a joint liability on a bill which he accepted 
 during his minority. He is not liable to a holder with 
 notice (m) . 
 
 4. An infant and his father make a joint and several 
 promissory note in consideration of money advanced to 
 the infant. The father is liable on this note as a principal 
 debtor (•») . 
 
 5 . An infant gives for value a post-dated cheque, dating 
 it a few days after attaining his majority. He is not liable 
 on this cheque (o) . 
 
 If the consideration for a bill given by an infant be 
 necessaries supplied to him, he may be liable on the con- 
 sideration, though not on the bill (p) . The age at which 
 infancy ceases differs in different countries. In most con- 
 tinental countries a distinction is drawn between infant 
 traders and non-traders, the former having full capacity. 
 It was formerly held in England that if an infant traded 
 and accepted bills he was estopped from setting up his 
 infancy (q), but this ruling is no longer law(r). 
 
 By this section, when a bill is payable to the order of 
 an infant, his indorsement transfers the property there- 
 in (s) . As an infant may be an agent, his indorsement 
 in that character gives rise to no difficulty. In America 
 
 of the action be contract, the infant cannot be made liable by suing 
 him in tort, see at pp'. 613, 620. 
 
 (Jc) Ex parte Kibble (1875), L. R. 10 Ch. 373. 
 
 (Z) Belfast Banking Co. v. Doherty (1879), 4 Ir. L. E. Q. B. D. 
 124. 
 
 (m) Smith v. King, (1892) 2 Q. B. 543. 
 
 00 Wauthier v. Wilson (1912), 28 T. L. R. 239, C. A. 
 
 (o) Hutley v. Peacock (1913), 30 T. L. R. 42. 
 
 (jo) Ex parte Margrett, Re Soltykof, (1891) 1 Q. B. 413, C. A.; 
 of. Chalmers' Sale of Goods Act, notes to § 2. 
 
 (q) Ex parte Lynch (1876), L. R. 2 Ch. D. 227. 
 
 00 Ex pane J one* (1881), 18 Ch. D. 109, C. A. ' 
 
 (s) Cf. Lebel v. Tucker (1867), 8 B. & S. at p. 833; Nightingale 
 v. Withington (1818), 15 Mass. 272; Grey v. Cooper (1782), 3 
 Dougl. 65.' 
 
72 
 
 Bills of Exchange Act, 1882. 
 
 122. 
 
 Liability of 
 company or 
 corporation. 
 
 it is not uncommon to get a bill 'made payable to. the order 
 of an infant clerk. His indorsement then operates as an 
 indorsement sans recours, though without openly discredit- 
 ing the bill. 
 
 A' corporation incurs no liability by drawing, indorsing, 
 or accepting a bill, unless expressly or impliedly em- 
 powered by its act of incorporation so to do (t) . Thus: — 
 
 1. A joint stock company is incorporated for the 
 purpose of forming a societe anomflne abroad for the con- 
 struction of railways. The directors are empowered by 
 the memorandum 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 1 such a company is liable on its 
 acceptance (u). 
 
 2 . A railway company, incorporated under an ordinary 
 Hail way Act, accepts bills which are negotiated. The 
 company is not liable on its acceptances (x). 
 
 In the case of a trading corporation the fact of incor- 
 poration 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 (fij), did not confer capacity on all companies under 
 that Act. It merely prescribed 1 the mode in which such 
 companies as had the requisite capacity were to exercise 
 it (z) . A mining company, a cemetery company, a salvage 
 company, a gas company, an alkali works company, and 
 a waterworks company, have been held to be non-trading 
 companies (a) . See post, p. 79, as to non-trading partner- 
 ships. There is this distinction: A non-trading partner- 
 ship can adopt a bill, but the bill of a company lacking 
 capacity is, as regards the company, incurably bad; for 
 a contract ultru vires of a corporation cannot be ratified. 
 Query, if the rule as to drawing bills or making notes 
 
 (f) Re Peruvian Railways Company (1867), L. E. 2 Ch. 617; 
 cf. Sinclair v. Brougham, (1914) A. O. 398, H. L. (building society 
 carrying on ultra vires banking business) . 
 , («) Be Peruvian Railways Co. (1867), L. R. 2 Oh. 617. 
 
 (») Bateman v. Mid Wales Railway Co. (1866), L. K. 1 O. P. 499. 
 
 (y) Repealed, and reproduced by sect. 77 of the Companies (Con- 
 solidation) Act, 1908 (8 Edw. 7, c. 69). 
 
 >■(*) Cf. Re Peruvian Railways Co, (1867), L. E. 2 Ch. 617. , 
 - : (a) Bateman v. Mid Wales Railway Co. (1866), L. B. 1 O. P. 
 499, at p. 505. 
 
Capacity and Authority. 73 
 
 applies to cheques? Is a non-trading corporation liable § 22. 
 on the instrument to the bearer of a dishonoured cheque 
 which it has drawn, or is it only liable on the considera- 
 tion to its immediate obligee ? The practice of paying by 
 cheque is so universal that perhaps capacity to contract by 
 cheque may be presumed. In America, the capacity of a 
 corporation to bind itself by bill or note is co-extensive 
 with its capacity to contract (6). The capacity of a com- 
 pany ceases when a resolution to wind it up has been 
 passed, although the resolution may not have been notified 
 in the Gazette 1 (c). 
 
 By this section, when a bill is payable to the order of Power of 
 a corporation, the indorsement of the corporation passes corporation 
 the property therein, though from want of capacity the 
 corporation may not be liable as indorser (d) . 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 (e). 
 
 At common law an alien enemy is a person (other than a Alien 
 prisoner of war) who resides or carries on business in enemies - 
 hostile territory. Residence, and not nationality, is the 
 test (/) . 
 
 An alien enemy may be sued, and therefore he may 
 defend and appeal from a judgment against him; but, 
 except under licence from the Crown, he cannot sue in a 
 British court. If his cause of action accrued before war 
 it is suspended during war, but is ; not extinguished (g) . 
 
 (V) Parsons, pp. 164, 165. 
 ■ (c) Bolognesi's Case (1870), L. B. 5 Ch. 567. 
 
 '(<*) Smith v. Johnson (1858), 3 H. & N. 222; 27 L. J. Ex. 363. 
 
 (e) Mahony v. East Holyford Mining Co. (1875), L. E. 7 H. L. 
 S69, 884. 
 
 (/) Driofontein Consolidated Mines v. Janson, (1902) A. C. at 
 p. 505, II . L..; Porter v. Freudenberg, (1915) 1 K. B. 857, C. A. In 
 other words, " local allegiance " is the test. But though Belgium was 
 largely occupied by the enemy, the fact that a company was incor- 
 porated in Belgium did not make it an enemy company: Societe 
 Anonyme Be'lge v. Anglo-Belgian Agency, (1915) 2 Ch. 409, O. A. 
 As to bills drawn by prisoners of war, see Antoine v. Morshead (1815), 
 « Taunt. 237; cf. Willison v. Patteson (1817), 7 Taunt, at p. 449. 
 As to a British company under enemy control, see The Daimler Co. 
 Case, (1916) 2 A. C. H. L. 307. 
 
 (g) Porter v. Freudenberg, (1915) 1 K. B. 857, C. A., see .at 
 p. 873 as to suspension. An alien enemy cannot be the actor in any 
 legal proceeding: cf. Ex p. Marum (1915), 84 L. J. K. B. 1893 
 (proof in bankruptcy). But as to pro forma joinder in partnership 
 action, see Rodriguez v. Speyer Bros., (1919) A. C. 59, H. L. - 
 
74 
 
 Bills of Exchange Act, 1882. 
 
 §22. 
 
 Banker and 
 banking 
 
 •ompany- 
 
 When war breaks out all commerce with the enemy 
 (except under licence from -the Crown) becomes illegal, 
 and every contract with the enemy, in so far- as it is exe- 
 cutory, is dissolved if its due fulfilment involves inter- 
 course with the enemy (h) . Thus, where a bill was drawn 
 during war by an alien enemy on London, and was in- 
 dorsed to an Englishman residing in hostile territory, it 
 was held that it could not be enforced even after, peace was 
 concluded (») ; and where a bill payable to* drawer's order 
 was drawn by a German firm, and accepted by an English 
 firm before war, hut was indorsed after war to an American 
 firm with two alien enemy partners, the acceptor can refuse- 
 payment (fc). 
 
 The common law rules may be extended or limited by 
 statutes or proclamations relating to trade with the enemy : 
 see, e.g., the Trading with the Enemy Act, 1915 (5 & & 
 Geo. 5, c. 98), which gave power to prohibit trading with 
 persons of enemy nationality or enemy association, though 
 not resident or carrying on business in enemy territory or 
 enemy occupied territory. 
 
 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 (I). 
 
 (b) To draw, accept, make, or 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, or to borrow, owe, 
 or take up any sum or sums of money on such 
 bill or note (to'). 
 Exception. — Banker or banking company lawfully issu- 
 ing such bills or notes on May 6, 1844, but subject to- 
 certain conditions (n) . 
 
 (h) Zinc Corporation, Ltd. v. IHrsch, (1916) 1 K. B. 541, C. A.; 
 Ertel Sieber f Co. v. Bio Tinto Co., (1918) A. C. 260. 
 
 (i) Willison v. Patteson (1817), 7 Taunt. 439. As to licence 
 to trade, see Disconto Gesellsohaft v. Brandt (1915), 31 T. L. B. 586. 
 
 (K) 8. M. Weld v. Vruhling and, Gosehen (1916), 32 T. L. S. 469. 
 
 (0 H 8 Vict. c. 32, ss. 10 and 28 (Bank Charter Act, 1844), as 
 explained by 17 & 18 Vict. i>. 83, ss. 11 and 12. 
 
 («s) 7 & 8 Vic*, c. 32, ss. 11 and 28, as explained by 17 & 18 Vict, 
 c. 83, s. 11. 
 
 (n) Ibid. 
 
Capacity and Authority. 75 
 
 Previous statutes define the bankers who in 1844 were §'22. 
 
 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 privileges (o) . The statutes now in force affecting 
 bills by conferring exclusive banking privileges on the 
 Bank of England are: 39 & 40 Geo. 3, c. 28, s. 15:;" 
 7 Geo. 4, c. 46; 9 Geo. 4, e. 23; 3 & 4 Will. 4, c. 83, s. 2;i 
 3 & 4 Will. 4, c. 98; 7 & 8 Vict. c. 32; 8 & 9 Vict. c. 76, 
 s. 5: 17 & 18 Vict. o. 83, ss. 11 and 12; 8 Edw. 7, c. 69, 
 Sched. VI. Part 2. Their provisions seem inconsistent, 
 but the later Acts do not expressly repeal the earlier 
 vones, so the whole must be construed together. See 
 sect. 97 (3) (c), post, saving the privileges of the Bank 
 of England. 
 
 By sect. 251 of the Companies (Consolidation) Act, 
 1908 (8 Edw. 7, c. 69), a bank which is registered as a 
 limited company is nevertheless liable without limit on 
 its notes. 
 
 As to annual return of bankers showing names and > 
 
 addresses of partners, see sect. 21 of the Bank Charter Act, 
 1844 (7 & 8 Viet. c. 32). 
 
 As to the varying systems of note issue in England, 
 Scotland and Ireland, see Concent's Banks of Issue; 
 Dictionary of Political .Economy, tit. Banks (United 
 Kingdom) . 
 
 23. No person is liable as drawer, indorser, or signature 
 acceptor of a bill who has not signed it as such(jo); uabUity. 
 Provided that 
 
 (1) Where a person signs a bill in a trade or 
 
 (o) Lindley, 8th ed. p. 115, n. 
 
 (p) Cf . Perm v. Harrison (1790), 3 T. B. at p. 761 ; BecJcham v. 
 Dralee (1841), 9 M. & W. at p. 92; Re Adamonia Co. (1874), 47 
 L. J. Ch. at p. 734, per James, L.J.; New York Negotiable Instru- 
 ments Law, § 37. For a statutory exception, see sect. 63 of the Com- 
 panies (Consolidation) Act, 1908, post, p. 409. 
 
76 Bills of Exchange Act, 1882. 
 
 § g 3. assumed name, he is liable thereon as if he 
 
 had signed it in his own name (q). 
 (2) The signature of the name of a firm is 
 equivalent to the signature by the person so 
 signing of the names of all persons liable as 
 partners in that firm (r). 
 
 Illustrations. 
 
 1. A., who is agent for X., draws a bill in his own name. The 
 payee knows that A. is only an agent. A. alone is liable as 
 drawer of this bill, X. is not(s). 
 
 2. B. and X. are jointly indebted to 0. 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 undisclosed principal is not (u) . 
 
 4. D. is the holder of a bill indorsed in blank by 0. D. con- 
 verts O.'s indorsement in blank into a special indorsement to B., 
 and transfers the bill to the latter. D. is not liable as 
 indorser (x). 
 
 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 from his partners to 
 vary the firm style. The firm is not liable on this note, though 
 X. individually is bound by it (y). 
 
 (q) Cf. Lindus v. Bradwell (1848), 5 O. 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. 
 
 (r)' Pooley v. Driver (1876), 5 Ch. I>. 458; Gurney v. Evans 
 (1858), 27 L. J. Ex. 166; cf. R. v. Holder/,, (1912) 1 K. B. 834, 
 0. O. A. 
 
 (s) Cf. Leadbitter v. Farrow (1816), 5 M. & S. at p. 350; Ex parte 
 Rayner (1868), 17 W. R. 64. Conversely 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 
 (1867), 2 M. & W. 863. 
 
 (t) SiffMn v. Walker (1809), 2 Camp. 308. 
 
 («) Pentz v. Stanton (1833), 10 Wend. 271, New York. 
 
 (») Vincent v. Horlock (1808), 1 Camp. 442. 
 
 \y) Faith v. Richmond (1840), 11 A. & E. 339; Kirk 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, tooi, is 
 bound if the variation in style be immaterial and unintentional: 
 Forbes v. Marshall (1855), 11 Exch. 166. As to an accidental 
 misspelling, see Leonard v. Wilson (1834), 2 Cr. & M. 589; Kirk.*. 
 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 the individual 
 
Capacity and Authority. 77 
 
 6. A. is a partner in the firm of "B. & Co." A., in respect of R 23. 
 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 ore not(z). 
 
 7. John Smith carries on business under the name of " John 
 Brown," or "Brown ■& Co.," or "The London Iron Company." 
 John Smith is liable on'a bill drawn, indorsed, or accepted by 
 him in any of these names (a) . 
 
 8. A principal trades and carries on a business in the name of 
 one of his agents (a clerk) . He is liable on a bill accepted by the 
 clerk in his own name in respect of that business, although the 
 clerk in accepting it acted contrary to his private instructions (6). 
 So, too, a firm may trade under its own name in one place, and 
 under the name of one of the partners in another place. His 
 name then becomes the firm name(c). 
 
 9. J. B. carries on business in his own name, but having a 
 dormant 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 bill was not a firm bill (d). 
 
 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. 63 of the 
 Companies (Consolidation) Act, 1908, post, p. 409, 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, 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 equiva- 
 lent to a signature, sect. 91 (2), post. 
 
 Bills and notes form an exception to the ordinary rult 
 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 
 
 names of his co-partners: Norton v. Seymour (1847), 16 L. J. O. P. 
 100. ...... 
 
 (z) Nicholson v. BicJcetts (1860), 29 L. J. Q. B. at p. 65; lie 
 Adansonia Co. (1874), 43 L. J. Oh. 732, firm composed of four firms. 
 
 (a) 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. 
 
 (by Edmunds v. Bushell (1865), L. K. 1 Q. B. 97; cf. Conro v. 
 Port Henry Iron Co. (1851), 12 Barb. 27, New York. 
 
 (c) Cf . Alliance Bank v. Kearsley (1871), L. K. 6 O. P. at p. 438, 
 
 (d) Yorkshire Banking Co. v. Bedtson (1880), 5 O. P. D. 109, C. A., 
 discussing the previous cases. 
 
78 Bills of Exchange Act, 1882. • 
 
 § 23. 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 probandi is shifted. 
 
 Partners. The signature of a firm! is deemed to be the signature 
 
 of all persons who are partners in the firm, whether 
 working, dormant, or secret (e), or who, by holding them- 
 selves out as partners, are liable as such to third parties (f) . 
 Where the name of a firm and the name of one of 
 the partners in it is the same, and 1 that partner draws, 
 indorses, or accepts a bill in the common name, the signa- 
 ture is prima 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 
 authority of the firm (g) . 
 
 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 
 tho acceptances 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 (h) . 
 
 The case of a non-trading firm illustrates the distinc- 
 tion between capacity and authority. The partners in «t 
 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 oo-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 subse- 
 quently 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 prima faeie authority to 
 
 (e) Pooley v. Driver (1876), 5 Ch. D. 458 ; Partnership Act, 1890 
 (53 & 54 Vict._ c. 39), s. 4. Sect. 6 of that Act, which deals with 
 authority to bind a firm, expressly saves any general rule of law 
 relating to negotiable instruments. 
 
 (/) Gurney v. Evans CISSS), 27 L. J. Ex. 16fi; Partnership Act, 
 1890, s. 14. By the Limited Partnership' Act, 1907 (7 Edw. 7, c. 24). 
 the liability of a, limited partner is restricted to the amount of his 
 share in the firm. 
 
 (g) Yorkshire Banking Co. v. Beatson (1880), 5 O. P. D. 109, C. A. 
 
 (h) Ibid.; and Lindley, 8th ed. p. 226. 
 
Capacity and Authority. 79 
 
 bind the firta by drawing, indorsing, or accepting bills in § 23. 
 
 the firm name for partnership purposes; and if the bill get 
 
 into the hands of a holder in due course, the presump- 
 tion of authority becomes absolute, and it is immaterial 
 "whether it were given for partnership purposes or not (*) . 
 Thus: — 
 
 1. X., a partner in a trading firm, makes a note in the 
 firm's name, payable to C, and 1 gives it to him in pay- 
 ment of a private debt. It lies on 0. to show that X. had 
 authority from his co-partners' so to do (k). 
 
 2. A. draws two bills on a trading firm' in respect of 
 one and the same debt. By mistake both bills are ac- 
 cepted 1 . The bills are negotiated to holders in due course. 
 The firm is liable on both bills (T) . 
 
 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 tcmto liability of the 
 firm 1 on the instrument is doubtful (m). 
 
 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-exoeption 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 prima facie Non-trading 
 no authority to render his co-partners liable by signing firm - 
 bills in the partnership name. The holder must show- 
 authority, actual or ostensible (o) . 
 
 Partnerships, such as professional partnerships {e.g., 
 
 (i) Ban* of Australasia v. Breillat (1847), 6 Moore, P. C. 152, at 
 p. 194; Wiseman v. Boston (1863), 8 L. T. N. S. 637; cf. sect. 5 of 
 the Partnership Act, 1890. ,.„»,,„ 
 
 (A) Cf. Levieson v. Lane (1862), 32 L. J. C. P. 10. 
 
 (1) Davison v. Robertson (1815), 3 Dow, 218, H. L. 
 
 Cm) Ellston v. Deacon (1866), L. R. 2 C. P. at p. 21. 
 
 (n) Yorkshire Banking Co. v. Beatson (1880), 5 O. P. D. 109, C. A. 
 
 (o) Dickinson v. Valpy (1829), 10 B. & C. at p. 137; Thicknesse 
 v. Bromilcm (1832), 2 Cr. & J. 425. 
 
80 Bills of Exchange Act, 1882. 
 
 § S3. solicitors) (p), mining partnerships (q), agricultural part- 
 nerships (r), commission agencies (s), and cinema proprie- 
 tors (ss), have been held non-trading: and auctioneers, 
 perhaps, are non-traders (t): but banking is a trading 
 partnership (w) . 
 
 In America, physicians, tavern-keepers, tunnel-workers,, 
 and farmers have been held non-traders (a;). In Harris 
 v. ,Amerff (y), Willes, 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 aooount 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 (z). 
 Power of Where a bill is payable to the order of a firm, a partner 
 
 transfer* w ^° caimo t by his indorsement render his co-partners, 
 liable, may transfer the property therein by negotiating it 
 in the firm' name (a) . 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 1 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 (c) . 
 
 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, 
 
 (p) Garland v. Jacomb (1873), L. P. 8 Ex. at p. 219. 
 
 lq) Rioketts v. Bennett. (1847), 4 C. B. at p. 699. 
 
 (r) Kimbro v. Bullit (1.859), 20 Howard, 256. 
 
 (s) Yates v. Dalton (1858), 28 L. J. Ex. 69. 
 
 (*«) Biggins v. Beauohamp, (1914) 3 K. B. 1192. 
 . . (it) Wheatley v. Smiihers, (1906) 2 K. B. 321; affirmed on a 
 different ground, viz., authority in fact, ibid., (1907) 2 K. B. 684," C.' A. 
 
 (u) Bank of Australasia v. Breillat (1847), 6 Moore, P. C* 152, 
 at p. 194. 
 
 (x) Parsons on Partnership, 2nd ed. p. 99, n. 
 
 (y) Harris v. Amery (1865), L. P. 1 C. P. at p. 154. 
 
 (z) Forster v. Mackreth .(1867), L. R. 2 Ex. 163. 
 
 \a) Lindley, 8th ed. p. 166; of. Pollock, 8th ed. p. 34. 
 
 (5), Cf. Smith v. Johnson (1858), 3 H. & N. 222; 27 L. J. Ex. 363. 
 
 (o) Williamson v. Johnson (1823), 1 B. & C. 146; Kirk v. Blurton 
 (1841), 9 M. & W. at p. 287. 
 
Capacity and Authority. 81 
 
 the property therein does not pass to an indorsee with § 23. 
 
 notice, but there seem to 'be technical difficulties in the way — 
 
 of an action for conversion brought by the firm (d) . 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. If the bill has been paid, an action 
 lies for money had and received (e) . 
 
 When a bill is payable to the order of a firm and the Ex-partners, 
 partnership is subsequently dissolved, the indorsement of 
 an ex -partner in the late firm name transfers the property 
 therein and authorizes the payment thereof (/) . 
 
 LevHs v. Reilly.(g), decided in 1841, may be open to 
 question, in so far as it lays down that an ex -partner, by 
 indorsing a bill in the late firm name, renders his former 
 partners liable as indorsers to a holder with notice of the 
 dissolution (h) . The question now turns on the true con- 
 struction to be put on sect. 38 of the Partnership Act, 1890 
 (53 & 54 Vict. c. 39). Where a partner retires from his 
 firm, but the business is carried on, he may still be liable 
 on the firm's bills if he has not given proper notice of his 
 retirement . His liability rests on the doctrine of " holding 
 out " which is now embodied in sect. 14 of that Act (i). 
 
 24. Subject to the provisions of this Act(&), Forged or 
 
 , . i -ii ■ i- i i i unauthorized 
 
 where a signature on a bill is iorged or placed signature, 
 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 
 
 (d) Eeilbut v. Nevill (1870), L. R. 5 C. P. 478, Ex. Oh. 
 
 (e) Ibid. 
 
 If) King v. Smith- (1829), 4 C. & P. 108; Lewis v. Eeilly (1841), 
 1 Q. B. 349. 
 
 (g) Lewis v. Eeilly (1841), 1 Q. B. 349. 
 
 (h) Kilgour v. Finlyson (1789), 1 H. Bl. 155; Abel v. Sutton 
 (1800), 3 Esp. 108; Anderson v. Weston (1840), 6 Bing. N. C. 296. 
 See passim Odell v. Cormack (1887), 19 Q. B. D. 223, as to dissolution. 
 
 (i) Lindley on Partnership, ed. 8, pp. 79, 80; and cf. L"x -p. 
 Central Bank of London, (1892) 2 Q. B. 633, C. A., which arose 
 before the Act. 
 
 (k) For the provisions referred to, see sect. 54 (2); sect. 55 (2), 
 as to estoppels; and sects. 60, 80, arid 82, protection to bankers paying 
 demand drafts, or collecting crossed cheques. See sect. 7 (3), as to 
 fictitious payees; and sect. 25, as to procuration signatures. 
 
 c. 6 
 
82 Bills of Exchange Act, 1882. 
 
 § 34. therefor or to enforce payment thereof against 
 Forgery, &e. an y 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 (I). 
 
 Provided that nothing in this section shall 
 affect the ratification of an unauthorized signature 
 not amounting to a forgery. 
 
 Illustrations. 
 
 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., who takes 
 it as a holder in due course. D. acquires no title to the bill, he 
 cannot enforce payment against any party thereto (m), and should 
 any party pay him, 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 (o). 
 
 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 (p). 
 
 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 signa- 
 tures were forged by a clerk of the acceptor's, who stole the 
 proceeds of the bills. The bank can debit the acceptor's account 
 with this payment, for the bill never having been payable to the 
 real C. & Qo., the payees were fictitious persons and the^bill was 
 payable to bearer under sect. 7 (3) (q). 
 
 (I) Cf. New York Negotiable Instruments Law, § 42, and cases 
 cited in Crawford's edition. As to "preclusion" or estoppel, see 
 post, p. 85. 
 
 (to) Mead v. Young (1790), 4 T. E. 28. 
 
 (m) Graves v. American Bank (1858), 17 New York R. 205; cf 
 Ogden v. Benas (1874), L. E. 9 C. P. 513. 
 
 (o) Johnson v. Windle (1836), 3 Bing. N. C. 225. 
 
 (?) Robarts v. Tucker (1851), 16 Q. B. 560, Ex. Ch. 
 
 (?) Bank of England v. Yagliano, (1891) A. C. 107, H. L. ; re- 
 versing Vagliano v. Bank of England (1889), 23 Q. B. D. 243, C. A. 
 
Capacity- and Authority. 83 
 
 5. A bill is payable to the order of a firm. X., one of the 8 24. 
 partners, fraudulently indorses it in the firm name to D. in pay- 
 
 ment of a private debt. The acceptor pays D. X. becomes bank- Forgery, &c. 
 r.upt. X.'s co-partners and trustee can recover from D. the 
 money he received on the bill (r) . 
 
 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. 0. can recover the amount of 
 the bill from the bankers (s). 
 
 7. Note for 100?. 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 (£). 
 
 8. A. draws a bill payable to O.'s order. As between A. and 0. 
 the consideration is fraudulent. X. forges O.'s indorsement, and 
 negotiates the bill to D., who takes it in good faith. D. finds out 
 that C.'s 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. (u). 
 
 9. B.'s acceptance to a bill is forged. A holder who takes it 
 bond fide 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 (x). 
 
 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 (y). 
 
 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 bill is dis- 
 honoured, and notice sent to A. A. does not repudiate $he 
 transaction for fourteen days after receipt of the first notice. 
 
 See note, ante, p. 24, and contrast N. and S. Wales Bank v. Macbeth, 
 (1908) A. C. 137. 
 
 \r).Beilbut v. Nevill (1870), L. E. 5 C. P. 478, Ex. Ch. 
 
 (s) Arnold v. Cheque Bank (1876), 1 O. P. D. 578; cf. Charles v. 
 Blackwell (1877), 2 C. P. D. at p. 157, and cases cited under § 82. 
 
 (2) Brook v. Book (1871), L. It. 6 Ex. 89; Ex parte Edwards 
 (1841), 2 Mon. D. & B. 241; and cf. Williams v. Bayley (1866), L. E. 
 1 H. L. 200, at p. 221. 
 
 («) Esdaile v. La Nauze (1835), 1 Y. & C. 394. 
 
 \x) Brook v. Book (1871), L. E. 6 Ex. at p. 100; Wilkinson v. 
 Stoney (1839), 1 J. & S. 503; Robarts v. Tucker (1851), 16 Q. B. 
 at p. 577. 
 
 (jf) Bogg v. Skeen (1865), 18 C. B. N. S. at p. 432; 34 L. J. 
 
 C. P. at p. 155, Willes, J. 
 
 6(2) 
 
84 - Bills of Exchange Act, 1882. 
 
 § 24. He is not estopped from setting up that his signature was 
 
 forged (z). 
 
 Forgery, &c. . 12 x f() B > g ^^3^. B . pays the holder. After- 
 
 wards 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 (o). 
 
 13. X. forges B.'s acceptance, and, in consideration of B.'s 
 paying 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 O.'s name to a draft, and 
 obtains the money. The bank is not discharged by this pay- 
 ment (c). 
 
 15. X. steals an uncrossed cheque payable to C, his employer, 
 forges his employer's indorsement, and pays the cheque into his 
 own bank. The bank credit X.'s account with the amount of the 
 cheque, cross the cheque for collection, and collect it. This is a 
 conversion of the cheque for which the bank is liable to 0., the 
 true owner (c?) . 
 
 16. A cheque is drawn in Roumania on London in favour of 
 C. & Oo., who indorse it to their agents, D. & Oo. The cheque is 
 stolen and D. & Co.'s indorsement is forged. The cheque is 
 cashed by a Vienna bank and forwarded to a London bank, who 
 collect the amount. By Austrian law the Vienna bank, who acted 
 honestly and without negligence, acquired a good title. The 
 London bank is not liable to C. & Oo. for the conversion of the 
 cheque (e). 
 
 17. X. by fraud induces A. to draw a cheque in favour of C. 
 X. then forges C.'s indorsement and pays the cheque in to his 
 own bankers, who collect the amount. The bankers are liable 
 to A. for converting the cheque, and it is immaterial that A. may 
 be indebted to X. on another transaction. The bankers cannot 
 set off the debt due to the forger (/) . 
 
 (2) M'Kenzie v. British Linen Co. (1881), 6 App. Gas. 82, H. L., 
 followed British Linen Co. v. Cowan (1906), 8 F. 704 (Scotland); 
 cf. Ogilvie v. West Australian Mortgage Corp., (1896) A. O. 257, 268,. 
 P. C. Aliter, if the bank's position had in the meantime been altered 
 prejudicially: ibid.; and see William Ewing $ Co. v. Dominion Bank,. 
 (1904) A. C. 806, 807, P. O., where leave to appeal was refused. 
 The case is repoifoed in full, 35 Canada Sup. Court Eeports, p. 133. 
 
 (a) Morris v. Bethell (1869), L. E. 5 C. P. 47. 
 
 (6) Ex parte CaUeoott, Re Maplebeck (1876), 4 Oh. D. 150, C. A. 
 
 (c) Orr v. Union Bank (1854), 1 Maoq. H. L. 513. 
 
 (d) Gordon v. Capital and Counties Bank, (1902) 1 K. B. 242, 
 C. A. ; affirmed, H. L., (1903) A. O. 240. 
 
 (e) Embiricos v. Anglo- Austrian Bank, (1904) 2 K. B. 870; 
 affirmed, (1905) 1 K. B. 677, C. A. See note, post, p. 278. Qu>. if 
 the cheque was stopped would the drawer be liable to a person who 
 held bond fide under the forged indorsement? Probably he would be 
 liable. 
 
 (/) North and South Wales Bank v. Macbeth, (1908) A. C. 137 v 
 11. Ti. (Irvine' 8 Case). 
 
Capacity and Authority. 85 
 
 By sect. 60, post, a banker who pays a demand draft § 24. 
 
 drawn on him and held under a forged indorsement is 
 
 protected, and so is a banker who collects a crossed cheque 
 for his customer (see sect. 82, post). For further illustra- 
 tions see also note on recovery of money paid by mistake, 
 post, p. 235, and sect. 7 (3), ante, as to fictitious payees. 
 
 Illustration 7 shows that a forgery cannot be ratified, Ratification, 
 and the language of the Act seems to countenance this 
 view. A forger does not act, and does not purport to act, 
 on behalf of the person whose name he forges. There is, 
 therefore, nothing on which ratification can be grounded. 
 In a Scotch appeal before the Act, Lord Blackburn says 
 that a forgery may be ratified (g), but the English cases 
 were not cited, and the decision turned on the ground that 
 the facts had not created an estoppel. " A document 
 cannot be a forged 1 instrument as between certain persons 
 and not as between others " (h), but one person may be 
 estopped from setting up the forgery while another may 
 not. 
 
 The word " precluded " was inserted in committee in Estoppels, 
 lieu of the word " estopped," an English technical term, 
 unknown to Scottish 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 holder ("Illustration 9); and, again, a party 
 to a bill may be estopped by his conduct (i), or in certain 
 cases by the. fact of becoming a party (k), from 1 setting up 
 that the signatures of other parties thereto are forged or 
 unauthorized'. When an estoppel by negligence is relied 
 on, it must be shown that the negligence was the direct 
 and proximate cause of the forgery being taken as 
 genuine (I) . It must be the causa causans, and not merely 
 
 (g) M'Kenzie v. British Linen Co. (1881), 6 App. Gas. at p. 99, 
 H. L. 
 
 (h) Morison v. London County $ Westminster Bank, (1914) 3 
 K. B. at p. 374, C. A. 
 
 (i) Arnold v. Cheque Bank (1876), 1 O. P. D. 578; Patent Safety 
 Gun Cotton Co. v. Wilson (1880), 42 L. J. O. P. 713, O. A. 
 
 (k) 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 payee, sect. 7 (3); fictitious drawee, sect. 5 (2). 
 
 (I) Arnold v. Cheque Bank (1876), 1 C. P. D. 578; , cf . Lewes 
 Sanitary Laundry Co. v. Barclay, Bevan $ Co. (1906), 11 Com. Cas. 
 255, at p. 267; Smith v. Prosser, (1907) 2 K. B. at p. 746, C. A.; 
 Kepitigalla Rubber Estates v. National Bank of India, (1909) 2 K. B. 
 
86 
 
 Bills of Exchange Act, 1882. 
 
 Injunction, 
 &c. 
 
 Fraudulent 
 alteration. 
 
 Foreign laws. 
 
 § 24. the causa sine qua non. There was formerly ground for 
 contending that when a married woman's indorsement was 
 forged by her husband, the property in the bill passed to 
 a holder in due course (mi) ; but since the Married Women's 
 Property Act and this Act, it is conceived that this conten- 
 tion could no longer be maintained. 
 
 Where a bill is held under a forged signature, the Court 
 can restrain its negotiation by injunction, or order it to 
 be given up and cancelled (») . 
 
 A bill held under a forged signature must be distin- 
 guished from a bill with genuine signatures which has 
 been fraudulently altered, though such alteration may 
 amount to the crime of forgery : see sect. 64, post. 
 
 Under the continental codes the payor is not bound to 
 verify the genuineness of the indorsements, and in some 
 countries a bona fide holder for value can make a good 
 title through a forged indorsement. 
 
 Illustration 16 shows that this section must be read 
 subject to the rules of international law, and that the 
 transfer of a chattel must be governed by the law of the 
 place of transfer. 
 
 As Williams, L.J., says: " The rule that the transfer 
 of chattels must be governed by the law of the country 
 where the transfer takes place applies to a bill or 
 cheque " (o). 
 Criminal law. Forgery of a bank-note is punishable with penal servi- 
 tude for life, and forgery of any other bill or note is 
 punishable with fourteen years' penal servitude; see sect. 2 
 of the Forgery Act, 1913 (3 & 4 Geo. 5, c. 27); and for 
 definition of forgery, see sect. 1 of that Act (p). 
 
 Procuration 
 signatures. 
 
 25. A signature by procuration operates as 
 notice that the agent has but a limited authority 
 
 at p. 1022; London Joint Stock Bank f. Macmillan, (1918) A. C 
 77V; 23 Com. Cas. 415, H. L., reviewing ihe previous cases. 
 
 (m) Dawson v. Prince (1858), 27 L. J. Ch. 169, L.JJ. 
 
 (ot) Esdaile v. La Ncmze (1835), 1 Y. & C. 394; Seton on Decrees, 
 ed. 7, p. 712. 
 
 (o) Embirioos v. Anglo- Austrian Bank, '(1905) 1 K. B. at p. 683,, 
 C. A. 
 
 (p) Cf. R. v. Molden, (1912) 1 K. B. 483, discussed Morison v. 
 London County and Westminster Bank, (1914) 3 K. B. at p. 381, 
 C. A. (partner signing firm name without authority); R. v. Rogers 
 (1838), 8 C. & P. 629 (John Smith signing as " John Smith & Co.," 
 there being no such firm). 
 
Capacity and Authority. 87 
 
 to sign, and the principal is only bound by such § 26. 
 signature if the agent in so signing was acting 
 within the actual limits of his authority (q). 
 
 Illustrations. 
 
 1. B., who 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.'b name in respect to the partnership business, singing 
 it "per pro." The bill is negotiated. B. is not liable on this 
 acceptance (r). 
 
 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 pro. the 
 company, without requiring the deposit of security. The bill is 
 negotiated to a bond fide holder. The company is liable (s). 
 
 3. A cheque payable to order is indorsed "per pro." 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 representation of the com- 
 pany." This not being necessary, or in the ordinary 1 course of the 
 company's business, the company is not liable (it). 
 
 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 
 construction of the power of attorney held by X., and in con- 
 struing it, it will be held that a power to sell does not include 
 a power to pledge (x). 
 
 (?) New York Negotiable Instruments Law, § 40; of. Paget on 
 Banking, ed. 2, p. 258, as to collecting bankers. 
 
 (r) Attwood v. Munnings (1827), 7 B. & C. 278; Stagg v. Elliott 
 (1862), 12 C. B. N. S. 373; 31 L. J. O. P. 260. Cf. Jacobs v. Morris, 
 (1902) 1 Ch. 816, O. A., as to restraining negotiation of bill accepted 
 by agent in excess of his authority. 
 
 (s) Re Land Credit Co. (1869), L. R. 4 Ch. 460; and cf. Ex parte 
 Meredith (1863), 32 L. J. Ch. 300; Jacobs v. Morris, (1902) 1 Oh. 
 816 (construction of power). 
 
 (t) Charles v. Blaekwell (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. The 
 eheque was signed " C. & Co. per S. K. agent," but it was assumed 
 in the judgments that this was the equivalent of " per pro." signature. 
 
 («) Re Cunningham $ Co., Limited (1887), 36 Ch. D. 532. 
 
 (%) Jonmenjoy v. Watson, (1884), 9 App. Cas. -561, P. 0., dis- 
 tinguishing Bank of Bengal v. Maeleod (1852), 7 Moore, P. C. 35; 
 cf. Bryant v. Banque dn Peuple, (1893) A. C. 170, P. C. If the 
 agent is acting within his authority, the fact that he has abused it 
 
88 Bills of Exchange Act, 1882. 
 
 § 25. *>., A clerk is authorized to draw cheques "per pro.'' for his 
 
 employer's business. He draws a cheque per pro. his employer, 
 
 making it payable to a bookmaker for his private betting losses. 
 The bookmaker gets the cheque cashed. The employer can 
 recover the money from the bookmaker {y). 
 
 7. An agent draws a cheque "per pro." in excess of his autho- 
 rity. 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 (z). 
 
 This section is declaratory. It relates only to liabili- 
 ties on the instrument itself, and does not apply to the 
 proceeds of a bill -winch has been paid or discharged. It 
 cannot therefore be read into sect. 82, which protects a 
 banker collecting crossed 1 cheques (a). 
 
 If Smith & Co. give their manager, John Brown, au- 
 thority to sign for them "per pro.," the usual form of 
 signature is "p.p. Smith & Co.; John Brown." 
 
 There is perhaps a disposition to narrow the rule in the 
 case of corporations (6). In ah Irish case (c) a distinction 
 is drawn between an acceptance signed "p.p. J. B., 
 T. S.," and one signed " For J. B., T. S." The distinc- 
 tion does noj; seem founded on any clear principle. The 
 case can be supported on other grounds. 
 
 In Attutood'v. Munnings (d), Bayley, J., says: " This 
 was an action on an acceptance imparting to be by pro- 
 curation, and therefore any person taking the bill would 
 know that he had not the security of the acceptor's signa- 
 ture, but of the party professing to act for hinl in pur- 
 suance 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 . 
 
 does not affect a holder without notice. As to action for conversion 
 when agent has indorsed " per pro." in fraud of his authority, see 
 Gompertz v. Cook (1903), 20 Times L. R. 106. 
 
 (y) Morison v. Kemp (1912), 29 T. L. R. 70. 
 
 (z) Reid v. Rigby, (1394) 2 Q. B. 40. 
 
 (a) Morison v. London County $ Westminster Bank, (1914) 3 
 K. B. 356, C. A.; cf. Charles v. Blaclcwell (1877), 2 C. P. D. 151, 
 C. A. (paying banker). 
 
 (6) Re Land Credit Co. (1869), L. R. 4 Ch. 460, at p. 468. 
 
 (c) O'Reilly v. Richardson (1865), 17 Ir. Com. L. R. 74; but cf. 
 Balfour v. Ernest (1859), 28 L. J. C. P. at p. 176; Ulster Bank v. 
 Synnott (1871), 5 Ir. R. Ch. at p. 612; Employers Liability Assn. 
 \. Skipper (1887), 4 T. L. R. 55. 
 1 (d) Attwood v. Mimmngs, 7 B. & C. 278, at p. 283. 
 
Capacity and Authority. 80 
 
 another person to. a bill, either simply or 'by a procuration § 25. 
 
 signature, is not (except in the special case provided for ■ h 
 
 "by sect. 63 of the Companies Act, 1908, post, p. 410) Tuthority. 
 liable on the instrument (e) ; but if the alleged principal 
 be a fictitious or non-existing person, the signer is liable 
 on the instrument (/). Thus: — 
 
 1. A bill drawn on B. is held by C. X., without 
 authority, accepts it for B., signing per pro. X. is not 
 liable as acceptor, though he may be liable to C . or a sub- 
 sequent holder in an action for a false representation or 
 breach of warranty of authority (g) . 
 
 2. Two directors of a limited company, which has no- 
 power to accept bills, accept a bill " per pro." the company. 
 They may be personally liable in an action fbr false repre- 
 sentations (h). 
 
 In an action for false representation, under such cir- 
 cumstances, it lies on the holder to prove damage (i) . 
 The modern tendency is to restrict liability ex delicto to 
 cases of intentional fraud. To sign the name of another 
 person to a bill " per pro." without authority and with 
 intent to defraud was not a forgery at common law, but 
 it was made felony by statute (fc) . But if there is au- 
 thority, the fraudulent misuse of that authority does not, 
 it seems, amount to forgery (?) . 
 
 26. (1) Where a person signs a bill as drawer, Persons 
 indorser, or acceptor, and adds words to his sig- TgenTorlii 
 nature, indicating that he signs for or. on behalf capao S ity tetlV * 
 •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 
 
 O) Polhill v. Walter (1832), 3 B. & Ad. 114. 
 
 (/) Cf. Kelner v. Baxter (1866), L. B. 2 O. P. 174; and see 
 sect. 23 (1). 
 
 (g) Polhill v. Walter (1832), 3 B. & Ad. 114. He is also liable as 
 impliedly warranting his authority. See Starkey v. Bank of England, 
 (1903) A. C. 114, H. L. 
 
 (h) West London Commercial Bank v. Kitson (1884), 13 Q. B. D. 
 360, C. A., see at p. 362. 
 
 (i) Eastwood v. Bain (1858), 3 H. & N. 738; 28 L. J. Ex. 74. 
 
 (#) The Forgery Act, 1861 (24 & 25 Vict. c. 98), s. 24. See now 
 sect. 1 of the Forgery Act, 1913 (3 & 4 Geo. 5, c. 27). 
 
 (V) Morison v. London County § Westminster Bank, (1914) 3 K. B. 
 =at p. 380, C. A. 
 
90 Bills of Exchange Act, 1882. 
 
 §26. as an agent, or as filling a representative character,, 
 does not exempt him from personal liability (m). 
 
 (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. 
 
 Illustrations. 
 
 1. Money is lent to a parish. The churchwardens give a note- 
 for the amount, signing it "J. B. and H. S., churchwardens. "• 
 They are personally liable on the note as makers (ra). 
 
 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, 
 signing them " J. 8., execute? of B." He is personally liable on. 
 these acceptances (o). 
 
 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 " (p). Quaere, 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), 
 
 ft T T» \ 
 
 «y «T ■' } Directors of the X. Company, Limited. 
 
 "J. T.', Manager." 
 The persons who sign are personally liable as makers (q). 
 
 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 (r). 
 
 6. Note in the form, " We, the directors of the X. Company,. 
 Limited, et cet." (signed by the directors), "J. B., J. S." In 
 the corner of the note is the seal of the company, and the signa- 
 ture of an attesting witness. J. B. and J. S. are personally- 
 liable («). 
 
 (m) See a somewhat different rule laid down by § 30 of the New 
 York Negotiable Instruments Law. 
 
 («) Mew v. Pettet (1834), 1 A. & E. 196. 
 
 (o) Liverpool Bank v. Walker (1859), 4 De G. & J. 24. 
 
 M Cf. Ghilds v. Monins (1821), 2 Brod. & B. 460. 
 
 Igj Courtauld v. Sanders (1867), 16 L. T. N. S. 562. 
 
 (»•) Alexander v. Sizer (1869), L. R. 4 Ex. 102; but see Gray v.. 
 Super (1866), L. R. 1 C. P. 694. 
 
 (s) Sutton v. Marsh (1871), L. R. 6 Q. B. 361; Landes v. 
 Bradwell (1909), 25 T. L. R. 478. 
 
Capacity and Authority. 91 
 
 7. Bill specially indorsed to "C, agent." He indorses it away, S 26 
 signing "C, agent." 0. is personally liable as indorser(tf). - ! 
 
 8. A note running " We, the undersigned, in the name and on 
 behalf of the Eeformed Presbyterian Church, Stranraer, promise 
 *° P a y." is signed by three persons. They are personally liable 
 on this note (m) . 
 
 9. Promissory note given for 3001. lent to a limited company, 
 and signed, "J. S., managing director." Above his signature 
 is stamped the name of the company, namely, "The J. S. 
 Laundry, Ltd." This is the note of the company, and J. S. is 
 not personally liable (a;). 
 
 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 as this, the 
 terms agent, manager, &c. attached to a signature are 
 regarded as mere designatio persona. 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 Ellenborough, " 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 exclusion ? Unless he says plainly ' I am the mere 
 scribe ' he is liable " (,«/). Cf. sect. 23, ante. It is often 
 difficult to determine whether a given signature is the sig- 
 nature of the principal by the hand of an agent, or the 
 signature of the agent naming a principal. The maxim 
 ut res magis valeat governs the construction. As to lia- 
 bility of agent signing his principal's name without 
 authority, see note to last section {z). By sect. 31 (5), 
 post, 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 Executors, 
 rise to difficulty. Where an executor merely winds up a &c - 
 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 
 
 (f) Bartlett v. Eawley (1876), 120 Mass. 92. 
 (u) M'Meehin v. Huston (1889), 11 Sess. Cas. 363. 
 («:) Chapman v. Smethurst, (1909) 1 K. B. 927, O. A. 
 (y) Leadbitter v. Farrow (1816), 5 M. & S. at p. 349. 
 (z) Apart from any question of fraud, he impliedly warrants his 
 authority, Starhey v. Sank of England, (1903) A. C. 114, H. L. 
 
y2 Bills of Exchange Act; 1882. 
 
 8 ^"- 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. 
 Master of The master of a ship who dlriaWs a bill on his owners for 
 
 *"• the price of necessaries supplied to the ship is personally 
 
 •liable on the bill, although he states in the bill that it is 
 "for value received 1 in coal . . for which I hold my 
 vessel owners and freight responsible" (a). 
 
 (a) The Elmville, (1904) P. 319. And see the course of business 
 in drawing, for necessaries described, The Bipon City, (1897) P. 225, at 
 p. 231. 
 
Consideration. 93 
 
 §27. 
 
 The Consideration for a Bill. 
 
 27. (1) Valuable consideration for a bill may Value defined. 
 be constituted by, — 
 
 (a) Any consideration sufficient to support a 
 simple contract (b) ; 
 
 Illustrations. 
 
 1. A cross acceptance (c), the forbearance of the debt of a 
 third person (d), the compromise of a disputed liability (e), a 
 promise to give up a bill thought to be invalid (/), a debt barred 
 by the Statute of limitations (g), the duty on the part of a thief 
 to restore stolen property (h), or the withdrawal of a letter to 
 a club committee complaining that acceptor has not paid a gaming 
 debt (»), constitute value. 
 
 2. A mere moral obligation (&), a debt represented to be due 
 
 (6) As to consideration in law generally, see notes to Lampleigh v. 
 Braiihwaite, 1 Smith, L. C, ed. 12, p. 159. 
 
 (c) Rose v. Sims (1830), 1 B. & Ad. at p. 526; of. Burdon v. 
 Benton (1847), 9 Q. B. 843; Hornblower v. Proud (1819), 2 B. & Aid. 
 327; Mice v. Grange (1892), 131 New York R. 149 (exchange of 
 promissory notes). As to proof on cross-acceptances, see Ex parte 
 Cama (1874), L. R. 9 Oh. 687, and Williams' Bankruptcy, ed. 11, 
 p. 157. 
 
 (d) Balfour v. Sea Assur. Co. (1857), 3 O. B. N. S. 300; 27 L. J. 
 C. P. 17; Crears v. Hunter (1887), 19 Q. B. D. 341, O. A. (forbear- 
 ance in fact, without binding agreement to forbear); cf. Elkington 
 v. Cooke Hill (1914), 30 T. L. R. 670 (forbearance to enforce note 
 pending currency of post-dated cheque). 
 
 (e) Cook v. Wright (1861), 30 L. J. Q. B. 321. 
 
 (/) Smith v. Smith (1863), 13 C. B. N. S. 418; 32 L. J. C. P. 149. 
 
 \g) Latouche v. Latouche (1865), 3 H. & C. at p. 576; 34 L. J. Ex. 
 85; cf. Wild v. Tucker, (1914) 3 K. 'B. 36 (debt provable in 
 bankruptcy) . 
 
 (K) London, and County Bank v. River Plate Bank (1888), 21 
 Q. B. D. 535, C. A.; cf. Lloyds Bank v. Swiss Bankverein (1912), 17 
 Com. Gas. 280, at p. 297 (conversion of other securities). 
 
 (i) Ex p. Martingell, Re Browne, (1904) 2 K. B. 133; cf. Hyams 
 v. Stuart King, (1908) 2 K. B. 696, C. A. 
 
 (k) Eastwood v. Kenyon (1840), 11 A. & E. 438; cf. Flight v. 
 Reed (1863), 32 L. J. Ex. 265; cf. White v. Bluett (1853), 23 I/. J. 
 Ex. 36, as to attempting to discharge a note for a loan by a promise 
 which -was. nudum pactum; Re Whitaker (1889), 42 Ch. D. 119 f , 
 
 C. A. (proof against lunatic's estate on voluntary note). 
 
94 Bills of Exchange Act, 1882. 
 
 § 27. though not really due (I), the giving up a void note (m), or a 
 voluntary gift of money (w), do not constitute value. 
 
 (b) An antecedent debt (o) or liability. Such a 
 debt or liability is deemed valuable considera- 
 tion whether the bill is payable on demand 
 or at a future time ( p). 
 
 Illustration. 
 A customer, being indebted to his 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 (q) . 
 
 The words " or liability, " were added in committee. 
 They perhaps extend the previous law. By sect. 2, ante, 
 "value " means valuable consideration, i.e., as defined by 
 this section. 
 
 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, 
 suffered, or undertaken by the other " (r). 
 
 This section, it seems, does not affect the principle of 
 Scottish law " that valuable consideration is not necessary 
 
 (l) Southall v. Jtigg (1851), 11 C. B. 481. And in Stott v. Fairlamb 
 (1883), 52 L. J. Q. B. 420, Denman, J., seems to have held an agree- 
 ment to pay a debt within three years is no consideration for giving a 
 note payable on demand. See, too, Bell v. Gardiner (1842), 4 |M. & fir. 
 11, note given in satisfaction of bill not .known to have been altered. 
 As to renewal of note made without consideration, which stands on the 
 same footing as the original, see Edwards v. Chancellor (1888), 52 
 J. P. 454. 
 
 (m) Coward v. Hughes (1855), 1I4J, 443; but cf. Mather v. 
 Maid.stone (1856), 18 C. B. 273; 25 L. J. O. P. 310, where an 
 estoppel intervened. 
 
 («) Hill v. Wilson (1873), L. E. 8 Ch. at p. 894. 
 
 (o) Poirier v. Morris (1853), 2 E. & B. 89; Swift v. Tyson (1842), 
 15 Pet. 1 Sup. Ct. U. S., Story, J.; cf. Butcher v. Stead (1875), L. E. 
 7 H. L. 839; New York Negotiable Instruments Law, § 51. 
 
 (j») Currie v. Misa (1875), L. E. 10 Ex. 153, Ex. Ch.; approved 
 Fleming v. Bank of New Zealand, (1900) A. C. 577, at p. 586, P. C. 
 (deposit of store warrant by plaintiff's agent) . 
 
 (g) M'Lean v. Clydesdale Banking Co. (1883), 9 App. Cas. 95. 
 
 (r) Currie v. Misa (1875), L. E. 10 Ex. at p. 162, per Lush, J.; 
 and cf. Carlill v. Carbolic Co., (1893) 1 Q. B. at pp. 271, 272, per 
 Bowen, L.J. J 
 
Consideration. 95 
 
 to support an obligation. But want of value (non-onero- § 27. 
 
 sity) may be pleaded in evidence when a bill is challenged — 
 
 on other grounds, as for illegality, fraud, or failure of the 
 •consideration " (s). 
 
 Until 1875 it was uncertain how far an antecedent debt 
 constituted a sufficient consideration for an instrument 
 payable on demand. In the case of a bill or note pay- 
 able 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 if), 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 conditional payment of the past debt, that is 
 to say, it is payment of the debt unless and until the bill 
 is dishonoured. Except where there is a lien by implica- 
 tion 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 (u). In Ex parte Richdale (x), 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. 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, the presumption being 
 that they are debtors (y) . 
 
 (s) Bell's Princ, 9th ed. § 333 b. 
 
 (0 Currie v. Misa (1875), L. R. 10 Ex. 153, Ex. Ch.; approved 
 M'Lean v. Clydesdale Banking Co. (1883), 9 App. Cas. 95; cf. 
 Marreco v. Richardson, (1908) 2 K. B. at p. 592, C. A. 
 
 («) Cf. De la Chaumette v. Bank of England (1829), 9B.&C. 208, 
 as explained in Currie v. Misa, L. R. 10 Ex. at p. 164, and M'Lean 
 v. Clydesdale Bank, 9 App. Cag. at p. 114. 
 
 (%) Ex parte Richdale (1882), 19 Ch. D. 409, C. A.; approved 
 Royal Bank of Scotland v. Tottenham, (1894) 2 Q. B. at p. 718, C. A.; 
 and of. National Bank v. Silke, (1891) 1 Q. B. at p. 439; Capital 
 and Counties Bank v. Gordon, (1903) A. C. 240, at p. 245, H. L. 
 
 (y) Cf. Re Commercial Bank of South Australia (1887), W. N. 
 p. 44; Ex parte Plitt, Re Brown (1889), 6 Morrell, 81; Gordon v. 
 London and Midland Bank, (1902) 1 K. B. 242, C. A.; affirmed, 
 (1903) A. C. 240, H. L.; and see notes to sect. 83, post. 
 
9f} Bills of Exchange Act, 1882. 
 
 § 27. Adequacy of value.— The Courts do not inquire into- 
 
 the adequacy of a bond fide consideration (z) . This was 
 always the law as regards considerations other than money,, 
 hut when the consideration was money, the usury laws for- 
 merly created a difficulty . This has now been removed (a) . 
 But inadequacy of consideration may be evidence of bad 
 faith or fraud (&). Again, inadequacy of consideration 
 must be distinguished from partial absence of considera- 
 tion, partial failure of consideration, part payment on. 
 account (c), or a mere advance made on a bill which is 
 pledged or deposited as security. 
 
 Unconscionable Bargains. — Although the adequacy of 
 the value given will not be inquired into where parties 
 contract on an equality, the Court in the exercise of it& 
 equitable powers will grant relief, as between immediate 
 parties, either with or without terms, when an unfair 
 advantage has been taken of a person's position, though 
 there may be nothing amounting to positive fraud; e.g., 
 in case of a catching bargain with an expectant heir or 
 reversioner (d), or where a woman has been induced to 
 give an accommodation acceptance without independent 
 advice (e). 
 Money- As to harsh and unconscionable dealings between 
 
 moneylenders and borrowers, see sect. 1 of the Money- 
 lenders Act, 1900 (63 & 64 Vict. c. 51). This enactment 
 enables the Court to give relief if the bargain is harsh 
 and unconscionable by reason of excessive interest or other 
 excessive charges, and extends "the old powers of the Courts 
 of Equity (/). The Act of 1900 is amended by the 
 
 (z) Jones v. Gordon (1877), 2 App. Cas. 616, H. ~L.; Earl v. Peck 
 (1876), 64 New York R. 596. As to an illusory consideration, e.g., 
 delay of one day, see Young v. Gordon (1896), 23 Ct. of Sess. Cas. 
 419. 
 
 (a) Jones v. Gordon, supra, per Ld. Blackburn, at p. 632. 
 
 (6) Ibid.; cf. Allen, v. Davis (1850), 20 L. J. Ch. 44: Simon v. 
 Cridland (1862), 5 L. T. N. S. 524. 
 
 (c) Dresser v. Missouri Co. (1876), 3 Otto, 92, Sup. Ct. TJ. S. 
 
 {d) Aylesjord v. Morris- (1873), L. E. 8 Ch. 484; Nevill v. 
 Snelling (1880), 15 Ch. D. 679. 
 
 (e) Maitland v. Backhouse (1847), 16 Sim. 58; Kempson v. Askbee 
 (1874), L. E. 10 Ch. 15. Query, effect of the Married Women's 
 Property Acts? And see ante, p. 70. 
 
 (/) Re A Debtor, (1903) 1 K. B. 705, C. A.; Samuel v. Neivbold, 
 (1906) A. C. 461, H. L.; Sterling v. Rose (1913), 30 T. L. E. 67; 
 Kerrnan v. Wainwright, (1916) W. N. p. 85 (excessive interest, 
 power to open up closed transaction); as to misdescription of money- 
 
 lenders. 
 
Consideration. 97 
 
 Moneylenders Act, 1911 (1 & 2 Geo. 5, o. 38), which inter § 27. 
 
 alia prohibits a moneylender from carrying on business 
 
 under any name indicating that he is a banker. Sect. 1 
 protects bond fide assignees and holders for value of 
 money-lending securities with a proviso that "nothing 
 in this enactment shall render valid an agreement or 
 security in favour of an assignee or holder for value who 
 is himself a money-lender." 
 
 (2) Where value has at any time been given Holder for 
 for a bill, the holder is deemed to be a holder for va ue ' 
 value as regards the acceptor and all parties to 
 the bill Vho became parties prior to such time (g). 
 
 Illusteations. 
 
 1. B. owes 0. 50L In order to pay C, A. at B.'s request draws 
 a bill on B. for 501. in favour of 0. C. is a holder for value 
 and can sue A., though A. has received no value (A). 
 
 2. A. draws a bill on B. payable to his own order. B., to 
 accommodate A., accepts it. Subsequently A. gives value to B. 
 A. is a holder for value (i) . 
 
 3. B. makes a note in favour of 0. C. is the treasurer of a loan 
 society, and the consideration for the note is money advanced by 
 the society to B. 0. is a holder for value (k). ' 
 
 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 (I). 
 
 5. A., at the request of X., draws a bill payable to C. for X.'s 
 account with C. X. remits the bill to 0. C. is a holder for 
 value. It is immaterial that there is no consideration between 
 A. and X., or that the consideration fails (m). 
 
 6. 8., 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 bill for the amount, drawn by A. upon 
 
 lender in promissory note, see Pezzer v. Lefkowitz, (1912) 2 K. B. 
 235, C. A. ; and see Laws of England, tit. Money and Money Lending. 
 
 (<?) Hunter v. Wilson (1849), 4 Exch. 489; New York Negotiable 
 Instruments Law, § 52. 
 
 (K) Scott v. Lifford (1808), 1 Camp. 246. 
 
 (i) Btirdon v. Benton (1847), 9 Q. B. 843. 
 
 (k) Lotnas v. Bradshaw (1850), 19 L. J. C. P. 273. 
 
 (Z) Barber v. Richards (1851), 6 Exch. 63. 
 
 (m) Munroe v. Bordier (1849), 8 C. B. 862; Watson v. Russell 
 (1862), 3 B. & S. 34; 31 L. J. Q. B. 304; (1864), 5 B. & S. 968., 
 Ex. Ch.; 34 L. J. Q. B. 93. 
 
 C. 7 
 
98 Bills of Exchange Act, 1882. 
 
 § 27. Paris, payable to C.'s order. X. remits the bill to 0., but fails 
 
 before he pays A. for it. 8. subsequently pays 0. 0. is a 
 
 Holder for holder for value, and can sue A. (w). 
 
 value. 
 
 In Illust. 6, C. would 1 be trustee for S.: see " holder " 
 denned 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 indorse- 
 ment (o) . Not so in mercantile language. Suppose Smith 
 in London wishes to pay 1,000 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 Us. 1,000. 
 Usually the bill is drawn payable to Brown, but some- 
 times 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 " (p). As to fixing 
 the rate of exchange at which a bill is to be sold, see note 
 to sect. 9, ante. See the conditions which regulate the 
 rate of exchange between two countries, and the mode in 
 which those conditions are taken advantage of, fully dis- 
 cussed in Qoseheris Foreign Exchanges. 
 
 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 " (q) . 
 
 A holder for value may or may not be a holder in due 
 course (r) . 'The holder of a bill who receives it from 
 a holder for value, but does not himself give value for it, 
 
 (») Poirier v. Morris (1853), 2 B. & B. 89. 
 
 (o) See post, p. 222, and Daniel, § 733 a. 
 
 (p) Cf. Comber v. Leyland, (1898) A. C. at pp. 530, 531. 
 
 (?) Jefryes v. Agra Bank. (1866), L. E. 2 Eq. 676: of. Ex parte 
 Kemp (1874), L. B. 9 Ch. 383. 
 
 (r) Raphael v. Bank of England (1855), 17 C. B. at p. 174; cf. 
 sect. 29, post; and Partridge v. Bank of England (1846), 9 Q. B. at 
 p. 126, Ex. Ch. 
 
Consideration. 99 
 
 has all the rights of a holder for value against all parties § 37. 
 to the hill except the person from whom he received 1 it, 
 see sect. 29 (3), post. 
 
 "A bill of exchange," says Parke, B., "is a chattel, 
 and the gift is complete by delivery, coupled with the 
 intention to give" (s). 
 
 (3) Where the holder of a bill has a lien oh it, Holder 
 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 (7). 
 
 Illustbations. 
 
 1. D. holds a bill indorsed in blank as agent for 0. : D. wrong- 
 fully pledges it with. E. B. 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. 0., the holder of a bill for 1001. , deposits it with D. as 
 security for a running account. At the time the bill matures 
 the balance is in C.'s favour, but subsequently the balance turns 
 against him to the extent of 501. D. is a holder for value as to 
 501. (x). 
 
 3. C, the holder of a bill for 100Z., indorses it to D. as a pledge 
 for 501. D. is a holder for value as to 501., and this is the sum 
 he can recover if he sues 0. (y). 
 
 4. C. keeps with his bankers a loan account and a general 
 account. 0. indorses to the bank, as collateral security for his 
 loan account, a bill for 1,000Z., and draws against it to the extent 
 of 5001. 0. becomes bankrupt, and his general account is over- 
 drawn more than 5001. The bank are holders of the bill for full 
 value (2) . 
 
 5. The drawer of a bill for 1001., which has been accepted for 
 his accommodation, indorses it to 0. as a security for 501. If 
 the acceptor becomes bankrupt, 0. can tender a proof for 1001., 
 but can only receive dividends to the extent of 501. (a). 
 
 0) Uilnes v. Dawson (1850), 5 Exoh. 948, at p. 950; cf. Benton 
 v. Peters (1870), L. R. 5 Q. B. at p. 477. 
 
 (f) New York Negotiable Instruments Law, § 53; Paget on Bank- 
 ing 1 , ed. 2, p. 305. As to consideration generally, and the rules for its 
 impeachment, see post, pp. Ill — 120. 
 
 (w) Collins v. Martin (1797), 1 B. & P. 648. 
 
 (*) Atwood v. Crowdie (1816), 1 Stark. 483; cf. Pease v. Hirst 
 <1829), 10 B. & C. 122; Gray v. Seehham (1872), L. R. 7 Oh. at 
 p. 683- 
 
 (y) Attenborough v. Clarhe (1858), 27 L. J. Ex. 138. 
 
 (2) Me European Bank (1872), L. R. 8 Ch. 41. 
 
 {a) Ex parte Newton (1880), 16 Ch. D. 330, O. A. 
 
 7(2) 
 
100 
 
 Bills of Exchange Act, 1882. 
 
 § 27. 6. A bill indorsed by a customer to his banker and entered 
 
 " " short," remains the property of the customer, though the banker 
 
 may have a lien on it (6). 
 
 The " discount " of a bill must be distinguished from 
 the pledge or deposit of a bill as security (c) . A " dis- 
 counter " is a holder for full value {d). Treasury bills 
 furnish a good example of a discount transaction. They 
 bear no interest, but are offered on the money market at a 
 fixed rate of discount. 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 (e). 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, provided 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 dis- 
 honour (/). 
 
 Banker's Lien. — A banker's lien on negotiable securi- 
 ties is " an implied pledge " (g). 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 (h). If the banker knows that the bills 
 
 (6) Thompson v. Giles (1824), 2 B. & C. 422; distinguished Ex 
 parte Stannard (1893), 10 Morrell, 193,, 212 (Cheques). 
 
 (o) Ex parte Twogood (1812), 19 Ves. 229; Be Gomersall (1875), 
 1 Ch. D. at p. 142; Ex parte Sohofield (1879), 12. Ch. D. 337, C. A., 
 bills indorsed " ponding discount." 
 
 (d) Hid.; cf. Thiedman v. Goldsmidt (1859), 1 De G. F. & J. 
 at p. 11. The term " discounter " is somewhat loosely used. It pro- 
 perly applies to the party who buys, and not to the party who sells, 
 •Hie bill. As to the operations of the discount market, see Spalding's 
 Foreign Exchange and Foreign Bills, Ch. XX. 
 
 (e) Beid v. Furnival (1833), 1 Cr. & M. 538. 
 
 (/) Peaeoch v. Purssell (1863), 32 L. J. C. P. 266. 
 
 ty) Brandao v. 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 who has the lien is the holder of the instrument 
 with the corresponding rights and duties, and he therefore has more 
 than the ordinary lien on an ordinary chattel. 
 
 (h) Ibid.; London Chartered Bank of Australia v. White (1879), 
 
Consideration. \ \ '•*•■ J j 101 
 
 do not belong to his customer, no lien can 's&f&cttf : (^. A § 27. 
 broker who deals in bills may have a lien similar to a "" 
 banker's (k) . If a hanker releases negotiable securities 
 pledged with him by a bill-broker on receiving the bill- 
 broker's cheque, and the cheque is dishonoured, the securi- 
 ties are not impressed with any trust in favour of the 
 banker (I). 
 
 The terms on which securities are deposited may, of 
 course, be such as to create a particular lien to the 
 exclusion of the general lien (m). 
 
 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 (n). 
 
 28. (1) An accommodation party to a bill is Aocommoda- 
 
 i 1 • i* i mi i .turn bill or 
 
 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 (o). 
 
 (2) An accommodation party is liable on the Liability of 
 
 v ' ... . accomnioda- 
 
 bill to a holder for value; and it is immaterial Nonparty. 
 whether, when such holder took the bill, he 
 knew such party to be an accommodation party 
 or not (p). 
 
 4 App. Cas. 413, P. O.; Johnson v. Robarts (1875), L. R. 10 Gh. 505, 
 where customer was a country bank; Currie v. Misa (1876), 1 App, 
 Cas. at p. 569, H. L.; and cf. Coleman v. Bucks and Oxon Bank, 
 (1897) 2 Ch. 243, as to application of trust funds to customer's private 
 overdraft. 
 
 (i) Ex parte Kingston (1871), L. R. 6 Ch. 632; cf. Thomson v. 
 Clydesdale Bank, (1893) A. C. at p. 289, H. L. 
 
 (k) Jones v. Peppercorn (1858), John. 430; 28 L. J. Ch. 158. 
 
 (Z) Lloyds' Bank v. Swiss Bankv&rein (1913), 18 Com. Cas. 79, 
 C. A. As to the nature of a bill-broker's business, see the judgment 
 of Hamilton, J., in the Court below, 17 Com. Cas. 280, and Spalding's 
 Foreign Exchange and Foreign Bills, p. 199. 
 
 Cm) Re Bowes (1886), 33 Ch. D. 586. 
 
 \n) Hills v. 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. 
 
 (o) New York Negotiable Instruments Law, § 55, and cases cited 
 in Crawford's edition. 
 
 (j») New York Negotiable Instruments Law, § 55. 
 
102 Bills of Exchange Act, 1882. 
 
 § 28. Illustrations. 
 
 1. Bill accepted for the accommodation of the drawer. This is- 
 an accommodation bill, and the acceptor is an accommodation 
 acceptor (q) . 
 
 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 (r). 
 
 3. Bill drawn against a running account, and accepted. This, 
 it seems, is not an accommodation bill, though the account may 
 have been against the drawer when the bill was drawn, or 
 accepted, or payable (s) . 
 
 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 bill, though the drawer is an accommodation drawer (t). 
 
 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 (u) . 
 
 A bill which is signed' by one or more accommodation 
 parties is frequently spoken of as an accommodation bill, 
 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 (x) . The distinction is material when ques- 
 tions arise as to what is a discharge of the bill. An 
 accommodation bill is discharged when it is discharged 
 by the person who is in substance, though not in form,, 
 the principal debtor (see, e.g., sect. 59 (3)), or if time be 
 given to such person Qy) . As a general rule the drawer or 
 indorser for whose accommodation a bill is accepted, cannot 
 
 (q) Collott v, Haigh (1812), 3 Camp. 281. 
 
 Or) Oriental Financial Corporation v. Overend (1871), L. 11. 7 
 Ch. 142. 
 
 (s) Ex parte Swan (1868), L. E. 6 Eq. at p. 356; cf. Wilks v. 
 Hornby (1862), 10 W. B. 742. 
 
 (0 Scott v. Lifford (1808), 1 Camp. 246; cf. Sleigh v. Sleigh 
 (18S0), 5 Exch. 514. 
 
 («) Cf. Se Sunn (1817), Buck, 113. This practice is not uncommon 
 in the case of foreign bills, a small commission being usually charged. 
 See, e.g., Societe Generate v. Metropolitan Bank (1873), 27 L. T. 
 N. S, 849. 
 
 (x) Cf. Oriental Financial Corporation v. Overend (1871), L. R. 
 7 Ch. at pp. 146, 151, and ibid., L. R. 7 H. L. at p. 358; Ex parte 
 European Bank (1871), L. R. 7 Ch. 99. 
 
 Qy) See last note. And see post, p. 251, Principal and Surety. 
 
Consideration. 108 
 
 , avail himself of want of due presentment for payment § 28. 
 
 (sect. 46 (2)), or notice of dishonour (sect. 50 (2)), or ' — 
 
 protest (sect. 51 (9)), because it is his own duty to provide 
 the funds to meet the hill at maturity. As to negotiation 
 of overdue accommodation bill, see note to sect. 36 (2), 
 post. 
 
 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 (2) : see 
 "holder for value" defined by sect. 27 (2) and (3). 
 Prima facie every party to a bill is deemed to have become 
 a party thereto for value: see sect. 30, post. 
 
 The term " finance bill " is somewhat loosely used. It Finance bill*, 
 denotes a bill which is issued for the purpose of raising 
 money, and which is not based on any trading transaction . 
 Whether it is an accommodation bill or not depends on 
 the arrangement between drawer and drawee, but nor- 
 mally it is an accommodation bill. The finance bill is 
 largely used in connection with arbitrage transactions. 
 Strictly, perhaps, the term should be restricted to long 
 bills drawn by the banks and accepting houses of one 
 country on those of another for the express purpose of 
 raising money at an opportune moment: see Spalding's 
 Foreign Exchange and Foreign Bills, Oh. XIX. 
 
 29. (1) A holder in due course is a holder Holder in duo 
 who has taken a bill, complete and regular on oouree - 
 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 
 been previously dishonoured, if such was the 
 fact (a) : 
 
 (b) 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 
 
 (z) Bechervaise v. Lewis (1872), L. R. .7 C. P. 372, at p. 377. 
 (a) See Hornby v. McLaren (1908), 24 T. L. R. 494, C. A. 
 (cheque known to have been dishonoured). 
 
■1°4 Bills of Exchange Act, 1882. 
 
 § 29. defect in the title of the person who nego- 
 
 tiated it (b). 
 
 Illustrations. 
 
 Holder in due 1. o., the holder of a bill payable to his order, transfers it to 
 course. j) f or va i uej but without indorsing it. 0. has obtained this bill 
 
 by fraud, but D. has no notice of this. D. is not a holder in 
 
 due course (c). 
 
 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 npt know it. At the time the agent receives the bill, 
 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 (d). 
 
 3. 0. indorses a bill to D. for value. D. suspects that 0. stole 
 the bill. As a fact he obtained it by false pretences. D. is not 
 a holder in due course (e). 
 
 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 the holder 
 in due course of these securities, and entitled to retain them 
 against 0. (/). 
 
 5. X., by false pretences, induces A. to draw a cheque in 
 favour of 0., who'takes it in good faith and for value. 0. is a 
 holder in due course ((7). 
 
 6. Bill in ordinary form payable thirty days after sight. It 
 is "complete and regular," although it has not been accepted (h). 
 
 By sect. 2, " holder " means the payee or indorsee of 
 a bill or note who is in possession of it, or the bearer 
 
 (6) Cf. New Vork Negotiable Instruments Law, § 91, and cases 
 cited in Crawford's edition; Lloyd's Bank v. Cooke, (1907) 1 K. B. 
 at p. 808, per Mxmlton, L.J. 
 
 (c) Whistler v. Forster (1863), 14 C. B. N. S. at p. 258; 32 
 L. J. C. P. at p. 163. D. is not the "holder" as defined by see*. 2. 
 
 (d) De la Chaumette v. Bank of England (1829), 9 B. & O. 208, 
 as explained by Carrie v. Misa (1875), L. E. 10 Ex. at p. 164; and 
 M'Lean v. Clydesdale Bank (1883), 9 App. Gas. at p. 114. 
 
 («■) Cf. Jones v. Gordon (1877), 2 App. Gas. at p. 628. 
 
 (/) London and County Bank v. River Plate Bank (1888), 21 
 Q. B. Df. 535, C. A. ; cf . London Joint Stock Bank v. Simmons, (1892) 
 A. C. 201. 
 
 (g) Watson v. Rusfell (1862), 31 L. J. Q. B. 304; cf. Lloyd's Bank 
 v. Cooke, (1907) 1 K. B. 794, C. A., per Moulton, L.J.; Talbot v. 
 Von Boris, (1911) 1 K. B. 854, C. A. 
 
 (A) National Park Bank of New Yorh-v. Berggren (1914), 19 Com. 
 Cas. 234. 
 
CONSIDEEATION. 105 
 
 • 
 
 thereof; and " bearer " means the person in possession of § 39. 
 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 
 " holder in due course " respectively, see sect. 38, post. 
 As to " negotiation," see sect. 31, post ; and as to overdue 
 or dishonoured bills, see sect. 36, post. As to defects in 
 title, see sub-sect. (2), post. 
 
 It has been doubted how far- the original payee of a bill 
 -or note which has been obtained 1 by fraud can be a " holder 
 in due course" (i); but Moulton, L.J., argues forcibly 
 that he may be (k) . The term holder in express words in- 
 cludes a payee. Suppose X. by fraud induces A. to draw 
 ■a cheque in favour of C, who takes it in good faith and 
 for value. Why is not C. a holder in due course? He 
 •clearly was before the Act (I). 
 
 The Act has substituted the positive term " holder in 
 •due course " for the cumbrous negative 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 Notice, 
 is to say, either knowledge of the facts, or a suspicion of 
 something wrong, combined with a wilful disregard of the 
 means of knowledge (to). As to " good faith " and the 
 tests thereof, see sect. 90, post, and 1 notes thereto, where the 
 subject is fully discussed.. In the .United States it seems 
 that if the holder takes a bill in good faith, but gets notice 
 of a defect in the title of his transferor before he has given 
 
 («') Lewis v. Clay (1897), 14 Times L. R. at p. 150; Herdman v. 
 Wheeler, (1902) 1 K. B. 361. 
 
 (k) Lloyd's Bank v. Cooke, (1907) 1 K. B. 794, O. A.; of. Talbot 
 v. Von Boris, (1911) 1 K. B. 854, C. A. 
 
 (I) Watson v. Russell (1862),. 3 B. & S. 34; affirmed, 5 B. & S. 
 ■368, Ex. Ch. 
 
 (m) Raphael v. Bank of England (1885), 17 C. B. at p. 174, per 
 Willes, J.; cf. Ex parte Snowball (1872), L. E,. 7 Oh. at p. 549. "A 
 person, may be proved to have had notice of an act of bankruptcy either 
 l>y 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": cf. New York Negotiable Instruments Law, 
 § 95, defining " notice " as actual knowledge or " knowledge of such 
 -facts that his action in taking the instrument amounted to bad faith." 
 
106 Bills of Exchange Act, 1882. 
 
 • 
 
 § 29. full value, he is only deemed a holder in due course to the- 
 extent he has paid before getting notice (n) . 
 
 Principal and agmt. — 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 (6),. 
 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 (p) ; and 1 (2) where a bill is negotiated 
 to an agent, and notice is given to the principal, or vice- 
 versa, there must be a reasonable time for communi- 
 cation (q). ; 
 Bill must be The rights of a holder in due course can only be 
 oomplete and aC q U i re d Dv a person who takes a bill before it is overdue,, 
 and which is " complete and regular on the face of it." 
 If the bill 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 material- 
 particular, he takes it at his peril (r) ; so also if the holder 
 takes a bill which has been torn and the pieces pasted 
 together, if the tears appear to show an intention to' 
 cancel it (s),. 
 
 An American judgment puts the point clearly. Some 
 negotiable county bonds, which had been indorsed in blank 
 by the payee, were stolen. The thief erased the payee's 
 indorsement, 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 (t): " He did 
 not rely upon anything that appeared upon the bonds. 
 
 (») New York Negotiable Instruments Law, § 93, and cases cited 
 in Crawford's edition. 
 
 (o) Cf. Collimon v. Lister (1855), 7 Be G. M. & G. at p. 637,. 
 branch bank. 
 
 O) Ex parte Oriental Bank (1870), L. K. 5 Ch. 358. 
 
 (q) Cf. Willis v. Bank of England (1835), 4 A. & E. at p. 39. 
 
 (r) Awde v. Dixon (1851), 6 Exch. 869, and cases in note to sect. 20,. 
 
 (s) Ingham v. Primrose (1859), 7 C. B. N. S. 82; 28 L. J. O. P. 
 294; cf. Scholey v. Ramsbottom (1810), 2 Camp. 485; Uedmayne v.. 
 Burton (1860), 2 L. T. N. S. 324. 
 
 (i) Colson v. Arnoi (1874), 54 New York R. 253, at p. 260; cf- 
 Angle v. N. W. Ins. Co. (1875), 2 Ofcto, at p. 342, Sup. Ct. U. S. 
 
Consideration. 107 
 
 He relied on the representations of the thief, and was § 29. 
 
 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 purchasers 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 bond 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 merchant 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 certainly 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 (w). 
 
 By sect. 45 of the Larceny Act, 1916 (6 & 7 Geo. 5, Stolen bills, 
 c. 50), when a thief is prosecuted to conviction the stolen 
 property is to be restored to the owner, but this provision 
 does not apply to " any valuable security which has been 
 in good faith paid or discharged by some person or body 
 corporate liable to the payment thereof, or, being a nego- 
 tiable instrument, has been in good faith taken or received, 
 by transfer or delivery, by some person or body corporate 
 for a just and valuable consideration without any notice 
 and without any reasonable cause to suspect that the same 
 has been stolen." This section reproduces in slightly 
 altered language sect. 100 of the Larceny Act, 1861 (24 
 & 25 Vict. c. 96), which is repealed (x). 
 
 O) Hitchcock v. Edwards (1889), 60 L. T. N. S. 636; and see 
 notes to sect. 13 (2), ante. 
 
 (x) Cf. Chichester v. Hill (1882), 52 L. J. Q. B. 160; and Moss 
 v. Hanoock, (1899) 2 Q. B. at p. 118, with regard to the Act of 1861. 
 As to courts of summary jurisdiction, see sect. 27 (3) of the Summary 
 Jurisdiction Act, 1879 (42 & 43 Vict. u. 49). 
 
108 
 
 §39. 
 
 ^Defects of 
 title. 
 
 Holder 
 
 claiming 
 under holder 
 in due course. 
 
 Bills of Exchange Act, 1882. 
 
 (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 (y). 
 
 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 a,t all, and who can give none;: 
 as, for instance, a person making title to a bill through a 
 forged indorsement: see sect. 24, ante, and see " holder " 
 defined in sect. 2, ante. 
 
 '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. 
 
 (3) A holder (whether for value or not) who 
 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 (z). 
 
 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 F. E. acquires 
 E.'s rights. If he gave value to E., he can sue all the parties 
 
 (jf) New York Negotiable Instruments Law, § 94. 
 
 (z) May v. Chapman (1847), 16 M. & W. 355, at p. 361; Masters 
 v. Ibberson (1849), 8 C. B. 100; Marion Comity v. Clark (1876), 4 
 Otto, 278, Sup. Ct.U. S.; cf. New York Negotiable Instruments Law, 
 § 97. 
 
Consideration. 109 
 
 to the bill; if he did not give value, he can sue all parties § 29. 
 
 except B. (a). 
 
 2. C, by fraud, induces B. to make a note in his favour. C. 
 indorses the note to D., who takes it for value and without 
 notice. Subsequently D. indorses the note for value back to C. 
 0. cannot sue B. (6). 
 
 30. (1) Every party whose signature appears ^/^"^"J 
 on a bill is prima facie deemed to have become a good faith. 
 party thereto for value (c). 
 
 (2) Every holder of a bill is prima facie deemed 
 to be a holder in due course (d); but if in an action 
 on a bill it is admitted or proved (e) 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(/). 
 
 Illustrations. 
 
 1. A. draws a bill on B. and indorses it to C. 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 (g). 
 
 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 con- 
 sideration, D. must prove that he gave value in good faith (h). 
 
 (a) May v. Chapman (1847), 16 M. & W. 355. 
 j (6) Cf. Sawyer v. Wisewell (.1864), 91 Massachusetts K. at p. 42. 
 
 (c) Cf. Batch v. Trayes (1840), 11 A. & E. 702; Foster v. Daiobe.r 
 (1851), 6 Exch. at p. 853; New York Negotiable Instruments Law, 
 §98. 
 
 (d) King v. Milsom (1809), 2 Camp. 6; New York Negotiable 
 Instruments Law, § 98. 
 
 (e) Evidence to go to a jury was the old test: Hall v. Feather'stonp 
 (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; cf. New York Negotiable Instruments Law, § 98. 
 (a) Mills v. Barber (1836), 1 M. & W. 425. 
 \h) Bailey v. Bidwell (1844), 13 M. & W. 73. 
 
110 Bills of Exchange Act, 1882. 
 
 § 30. 3. The holder of a bill indorses it to D. to get it discounted. 
 
 D. fraudulently negotiates it to E., who negotiates it to E. E. 
 
 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 pro- 
 hibited under a penalty. C. indorses it to D., who sues the 
 maker. Evidence is given of these facts. D. is not called on 
 to prove that he gave value (k). 
 
 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 (I). 
 
 6. An jacceptance ia 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 (m) . 
 
 7. A partner accepts a bill in the firm's name for a private debt 
 and in fraud of his eo-partners. The bill is negotiated. The 
 holder sues the firm as acceptors. As soon as it appears that the 
 bill was given for a private debt, the holder is called upon to 
 prove that he is an honest holder for value (n) . 
 
 8. Action by payee against husband and wife, the makers of 
 a joint and several promissory note. The wife signed the note 
 under duress from her husband. The onus of proof is not 
 shifted. The wife must give evidence showing that the payee 
 had notice of the duress (o). 
 
 " 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 1 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 (Field, J.) 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 bond fide. Upon this construction of the Act, I 
 respectfully differ from him. The plaintiff was bound to 
 
 (i) Cf. Smith v. Braine (1851), 16 Q. B. 244; Berry v. Alderman 
 (1853), 14 C. B. 95; Tatam v. Similar (1889), 23 Q. B. D. 535. 
 
 (lc) Fitch v. Jones (1855), 5 E. & B. 238; Belfast Banking Co. v. 
 Doh'erty (1879), 4 Ir. L. E. Q. B. D. 124. 
 
 (1) Eaphael v. Bank of England (1855), 17 C. B. 161. 
 
 (m) Mather v. Maidstone (1856), 18 C. B. 273; 25 L. J. O. P. 310. 
 
 (n) Hogg v. Sheen (1865), 18 C. B. N. S. 426; 34 L. J. 0. P. 153. 
 
 (o) Talbot v. Von Boris, (1911) 1 K. B. 854, C. A. 
 
Consideration. Ill 
 
 satisfy the jury that he gave value, and that he gave it § 30. 
 
 in good faith. The Act has settled the law in acoordanoe 
 
 with the opinion expressed by* Parke, B." (p). 
 
 Sub-sect. (2) does not apply to the original payee of 
 & note, but only to subsequent parties. In the case of an 
 original payee the ordinary common law rule prevails that 
 •a person alleging fraud or duress must prove it (q) . 
 
 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 bill alleged to 
 have been obtained by fraud (r) . 
 
 '' Force and fear " is the Scottish equivalent of the 
 English term " duress," but its signification, perhaps, is 
 somewhat 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, as in the case of a lien or 
 pledge, he may recover pro tanto (s) . 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 and remote 
 with such immediate party. p 
 
 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 indoreer and his indorsee, are in direct 
 relation. For example: 
 
 3 . A. draws a bill on B. payable to C, and delivers it 
 to the latter. B. accepts the bill while in C.'s hand's. B. 
 and C . are remote parties (t) . 
 
 O) Tatam v. Haslar (1889), 23 Q. B. D. 345, at p. 349; cf. Jones 
 v. Gordon (1877), 2 App. Cas. at p. 628; and Bailey v. Bidwell (1844), 
 13 M. & W. 73, at p. 76, per Parke, B. See, too, Oakley v. Boulton 
 {1888), 5 Times L. E. 60, C. A., and the note thereon in Byles, ed. 16, 
 p. 147. 
 
 (g) Talbot v. Von Boris, (1911) 1 K. B. 854, C. A. 
 
 (r) Hawkins v. Ward (1890), W. N. p. 203. 
 
 (s) Holcomb v. Wyckof (1870), 10 Amer. E. 219; Dresser v. 
 Missouri Co. (1876), 3 Otto, 92, Sup. Ot. U. S. 
 
 (0 Robinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch. 
 
112 Bills of Exchange Act, 1882. 
 
 § 30. 2. B. makes a note payable to C. Prima facie B. and 
 
 C. are. immediate parties; but if it appear that B. made 
 the note at" the request of X.' under 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 C. are remote 
 parties (m). Miter, if X. had been C.'s agent (a;). 
 
 Explanation 2 . — Privity is created in all cases by want 
 of consideration, and in some cases by notice; it may also 
 bo 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 (y). 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 
 no right to part with it. Title to a bill must be distin- 
 guished 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 (z) . 
 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, irrespective of the state of accounts between 
 them (a). 
 Absence of Rule 2. Mere absence of consideration, total or partial, 
 
 value. j g 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 
 
 (a) Cf. Watson v. Russell (1862), 3 B. & S. 34; 31 L. J. Q. B. 304. 
 ■ («) Astley v. Johnson (1860), 5 H. & N. 137; 29 L. J. Ex. 161. 
 
 ly) Cf. Fitch v. Jones (1855), 5 E. & B. at p. 246; and cases 
 quoted ante, p. 62; also Lee v. Hayes (1865), 17 Ir. C. L. R. at 
 p. 408. 
 
 (z) See Rule 5, and notes to sect.. 21. 
 
 (a) De la Chaumette v. Bank of England (1829), 9 B. & O. 208, as 
 explained Currie v. Misa (1875), L. R. 10 Ex. at p. 164, Ex. Ch. 
 
 (d) Cf . Forman v. Wright (1851), 11 C. B. at p. 492. 
 
Consideration. 113 
 
 value, who takes a bill knowing him to be such (c) . For § 30. 
 example: — — 
 
 1 . B., by way of gift, makes a note in favour of C . C. 
 cannot recover from B. (d). 
 
 2. C, the 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. (e). 
 
 3. Bill for 100Z. accepted for the accommodation of the 
 drawer. The drawer discounts it with C, who knows that 
 it is an accommodation .bill. C. can sue the drawer or 
 acceptor for 100?. (/); but if 0., instead of discounting 
 it, merely advanced 50Z. on it, he can only recover 501. (g). 
 
 4. B. owes A. 50?. A. draws a bill on B. for 100Z. 
 B., to accommodate A., and at his request, accepts it. If 
 A. sue B. he can recover only 50?. (h). 
 
 5. C. is D.'s agent abroad. 0. purchases a bill for D. 
 The bill is made payable to C.'s order, and he indorses it 
 to D . This is done merely for the purpose of safe trans- 
 mission, and not to guarantee the bill. If the bill is dis- 
 honoured, O. is not liable to D. as indorser (i). 
 
 6. A. and C. supply goods to B. A. draws a bill on B. 
 for the price, and indorses it to O. to collect on joint 
 account. If the bill is dishonoured, A. is not liable to 
 C. (7c). 
 
 7. B. acceps a bill drawn by A. to accommodate him. 
 A. indorses it to 0. without receiving value. C. indorses 
 to D . without receiving valu e . D . cannot recover from B . , 
 but it lies on B. to show that neither D. nor any inter- 
 vening holder was a holder for value (I). 
 
 (e) Scott v. Litford (1808), 1 Camp. 246; of. Strong v. Foster 
 (1855), 17 C. B. at p. 222; Petty v. Cooke (1871), L. R. 6 Q. B. 790; 
 and sect. 28 (2). 
 
 (d) Holliday v. Atkinson (1826), 5 B. & O. 501; cf. He Whitaker 
 (1889), 45 Ch. D. 119, O. A., as to voluntary note given by lunatic. 
 
 (e) Easton v. Pratehett (1835), 1 O. M. & R. at p. 808; cf. Milnes 
 ». Dawson (1850), 5 Exch. 948. 
 
 (/) Cf. Mills v. Barber (1836), 1 M. & W. 425; Sturtevant v. Ford 
 (1842), 4 M. & G-r. 101. 
 
 (g) Nash v. Brown (1817), cited Chitty, 11th ed. p. 60; Jones 
 v. Bibbert (1817), 2 Stark. 304; Ex parte Newton (1880), 16 Ch. D. 
 330, C. A., proof. 
 
 (h) Darnell v. Williams (1817), 2 Stark. 166. 
 
 (») Castrique v. Buitigieg (1855), 10 Moore, P. O. 110; cf. Re 
 Nunn (1817), Buck, 113. 
 
 (Je) Denton v. Peters (1870), L. R. 5 Q. B. 475. 
 
 (I) Mills v. Barbed (1836), 1M.&W. 425 ; cf . Thompson v. Clubley 
 (1836), 1M.&W. 212. 
 
 C. 8 
 
1H Bills of Exchange Act, 1882. 
 
 § 30. 8. The payee of a cheque puts it into the hands of his 
 
 infant child. He then itakes it away and locks it up, 
 saying he intends the child to have the money. Subse- 
 quently he dies. This is neither a gift nor a declaration 
 of 1 trust (w). 
 
 Although the donee of a note cannot sue the donor on 
 the instrument, the making of a note in favour of the 
 donee may perhaps be (evidence of a declaration of trust 
 in favour of the donee (n). Sed qu. ? 
 
 of^Jiue 11 ' 1 ™ Euk 3- Total failure of consideration is a defence 
 against an immediate party, :but it is not a defence 
 against a remote party, who is holder in due course (o) . 
 For example: — 
 
 1 . B. makes a note payable to C. The only considera- 
 tion is that C. is to act as B.'s executor. 0. dies first. 
 His personal representatives cannot enforce payment 
 against B. (p). 
 
 , 2. B. authorizes A. to draw on him against bills of 
 lading. A. draws aibill on B., and indorses it to C. with 
 the bill of lading attached. 0. gives value to A. B. 
 accepts the bill on receiving from O. 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 
 recover from B. (q). 
 
 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. C. does not pay A. He cannot 
 sue B. (r). 
 
 4. A. draws a bill on B. payable to his own order. B. 
 accepts. The consideration between A. and B. fails. A. 
 subsequently indorses the bill for value to C, who knows 
 
 (m) Jones v. Loch (1865), L. R. 1 Ch. App. 25. 
 
 (») Arthur v. Clarhson (1865), 35 Beav. 458 ; but see the criticisms 
 on this class of cases in Re Whitaher (1889), 42 Ch. D. 119, at p. 125, 
 C. A. (voluntary note and voluntary bond distinguished). 
 
 (o) Robinson v. Reynolds (1841), 2 Q. B. at p. 211, Ex. Ch,; 
 cf. Leather v. Simpson (1871), L. B,. 11 Eq. at p. 407. As to what 
 amounts to total failure, Wells v. Hopkins (1839), 5 M. & W. 7; 
 Hooper v. Treffry (1847), 1 Exch. 17; cf. Guarantee Trust Co. of 
 New York v. Hannay, (1918) 2 K. B. 623, C. A. 
 
 (p) Solly v. Hinde (1834), 2 Cr. & M. 516. 
 
 (q) Robinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch.; Leather v. 
 Simpson (1871), L. R. 11 Eq. 898; Guarantee Trust Co. of New 
 YorJc v. Hannay (1918), 23 Com. Cas. 399; (1918) 2 K. B. 642, 
 «52, C. A. 
 
 (»•) Astley v. Johnson (1860), 5 H. & N. 137; 29 L. J. Ex. 161. 
 
Consideration. 115 
 
 that the consideration between A. and B. has failed. O. § 30. 
 cannot sue B. (s). ~ 
 
 Failure of consideration, it seems, is a defence against 
 a remote holder for value with notice. The reason pro- 
 bably is that it is in the nature of a fraud to negotiate a 
 bill when the holder knows that the consideration on 
 which he received it has failed (t). But might there not 
 be cases in whichit would not be a fraud to do so? Again, 
 qu . as to the effect of failure of consideration after the 
 maturity of the bill, i.e., after a cause of action has 
 accrued ? (w) . When the consideration for a bill wholly 
 fails, the Court will usually restrain its negotiation by 
 injunction (x). 
 
 Rule 4. Partial failure of consideration is a defence Partial failure 
 pro tanto against an immediate party when the failure is value - 
 an ascertained and liquidated amount, but not other- 
 wise (y) . It is not a defence against a remote party who 
 is a holder for value (z) . For example: — 
 
 1 . B. accepts a bill for 1007. 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 801. B. retains the goods. If A. sue B. 
 on the bill, this is not a defence pro tanto (a). But B. 
 could now counterclaim. 
 
 2. B. accepts a bill for 1007. 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 C, his agent, to 
 collect. C. can only recover 50Z. (&). 
 
 3. B. accepts a bill drawn by A. for iOOl. 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 
 
 (s) Lloyd v. Davis (1824), 3 L. J. K. B. 38; of. Fairclough \. 
 Pavia (1854), 9 Exch. 690 (same principle assumed). 
 
 (<) Of. Oulds v. Harrison, (1854), 10 Exoh. at p. 579. 
 
 («) Cf. Watson v. Russell (1864), 5 B. & S. at p. 968; 34 L. J. 
 Q. B. 93. 
 
 (») Cf. Patrick v. Harrison (1792), 3 Bro. O. C. 476; Bainbridge 
 v. Hemingway (1865), 12 L. T. N. S. 74. 
 
 (y) Hay v. Nix (1824), 9 Moore, 159; Warwick v. Nairn (1855), 
 10 Exch. 762. 
 
 (z) Archer v. Bamford (1822), 3 Stark. 175. 
 
 (a) Glennie v. Imri (1839), 3 Y. & C. 436; cf. Hitchings v. 
 Northern Leather Co. of America, (1914) 3 K. B. 907 (payee v. 
 lndoraer). 
 
 (b) Cf. Agra Bank v. Leighton (1866), L. E|. 2 Ex. at pp. 64, 65. 
 
 8 (2) 
 
118 Bills of Exchange Act, 1882. 
 
 § 30. the bill, to C. without value. If 0. sues B. he can only 
 recover 50?., the price of the one bale which is kept (c). 
 
 In some cases of partial failure of consideration, the 
 Court would perhaps restrain the holder from negotiating 
 the bill after notice (d). Before the Judicature Acts it 
 was important to distinguish between defences to an action 
 on the bill, and matters which could only be dealt with 
 by cross-action, e.g., partial failure of consideration where 
 the amount was not a sum certain. But now any such 
 matters can be included in a counterclaim, 
 durem *" Rule S . Fraud is a defence against an immediate party 
 
 and against a remote party who is not a holder in due 
 course (e). 
 
 A bill is affected with fraud when the issue or any 
 subsequent negotiation of it is obtained by fraud (/), or 
 coercion (g), or when it is negotiated in breach of faith (h) t 
 or in fraud of third parties (i) . 
 
 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 bill against the 
 true owner (k). 
 
 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 ease of fraud is made out, the Court will restrain the 
 negotiation 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. t 
 
 (c) Cf. Agra Bank v. Leighton (1866), L. R. 2 Ex. at pp. 64, 65. 
 
 (d) Cf. Jackson v. Shanks (1866), 12 Jur. N. S. 917. 
 
 (e) Whistler v. Forster (1863), 14 C. B. N. S. at p. 258 ; 32 L. J. 
 C. P. at p.* 163. 
 
 (/) Wienholt v. Spitta (1813), 3 Camp. 376; Dawes v. Harness 
 (1875), L. R. 10 C. P. 166. 
 
 (g) As to duress, Duncan v. Scott (1807), 1 Camp. 100 (onus 
 probandi); Kearns v. Durell (1848), 6 C. B. 596; Societe Anonyme 
 des Hotels t. Hawker (1913), 29 T. L. R. 578 (cheque given to 
 hotel keeper in Prance under threat of prosecution); White v. 
 Heylman (1859), 34 Pennsyl. R. 143; Loomis v. Ruck (1874), 56 
 New York R. 462. 
 
 (h) Lloyd v. Howard (1850), 15 Q. B. 995; Barber v. Richard? 
 (1851), 6 Exch. 63; cf. sect. 21 (2), ante. 
 
 (i) Jones v. Gordon (1877), 2 App. Cas. 616, H. L. , 
 
 (k) Ibid.; Lloyd v. Howard, supra; Alsager v. Close (1842), 10 
 M. & W. 576. 
 
 (1) Joyce on Injunctions, p. 369; and see Jones v. Lane (1829), 3 
 Y. & C. at p. 293; Seton on Decrees, ed. 7, p. 712.. 
 
Consideration. 117 
 
 if the acceptor when sued by an indorsee sets up that the § 80. 
 
 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 
 jus tertii alone is a good defence (m) ; but if the indorser 
 intended 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^ 
 affirmed the transaction (n), for fraud renders a contract 
 voidable, not void. 
 
 Rule 6 . Illegality of consideration, total or partial, is a Illegal 
 defence against an immediate party, but not . against a consideration, 
 holder in due course (o). 
 
 The consideration for a bill is illegal when it is wholly 
 or in part immoral, contrary to public policy, or forbidden 
 by statute (p). For example: 
 
 1. Bill accepted for value. The drawer indorses to C. 
 for an illegal consideration, e.g., to stifle a prosecution for 
 felony. C. can, it seems, sue the acceptor (q), 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 considera 1 
 tion, and cannot be enforced (r). 
 
 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 (s). 
 
 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 
 indorses the note to his successor. The society consists of 
 
 (m) Lloyd v. Howard (1850), 15 Q. B. 995; Barber v. Richards 
 (1851), 6 Exch. 63. 
 
 (») Dawes v. Harness (1875), L. R. 10 C. P. 166. So held in 
 America, Froutz v. Roberts (1850), 69 Massachus. R. 19; Carrier v. 
 Sears (1862), 86 Massachus. 336. 
 
 (o) Bay v. Ayting (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. 
 
 (r) Jones v. Merionethshire Building Society, (1892) 1 Ch. 173, 
 C. A. 
 
 (s) Armstrong v Gibson (1872), 11 Amer. R. 599. 
 
118 Bills of Exchange Act, 1882. 
 
 § 30. more than twenty members, and is therefore illegal. The. 
 indorsee cannot sue the maker (t). 
 
 5 . Note given by defendant to plaintiff in payment of 
 a composition of 5s. in the £. It appears that the plain- 
 tiff was induced to assent to the composition by the de- 
 fendant, unknown to the other creditors, indorsing to him 
 the acceptance of a third person. This fraudulent prefer- 
 ence is a good defence to an action on the note (u) . 
 
 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 (x) . 
 
 7. Note given by defendant to O. in respect of gambling 
 transactions on the Stock Exchange. O. indorses the note 
 for value to the plaintiff, who has notice of the facts. The 
 original consideration being merely void under 8 & 9 Vict. 
 c. 109, s. 18, and not illegal, the plaintiff can recover on 
 the note (y). 
 
 8 . B . , having lost money on a horse race, borrows money 
 from C. wherewith to pay the debt, and gives C. a pro- 
 missory note for the amount so advanced. If B. becomes 
 bankrupt, C . can prove on the note for money lent (z) . 
 
 9. A., having lost money to C. in respect of bets made 
 on a horse race, dtaws a cheque in C.'s favour for the 
 amount. C. indbrses the cheque for value to D., who has 
 notice of the fadts. D. cannot recover on this cheque, for 
 it was given for an illegal consideration within the 
 meaning of 5 & 6 Will. 4, c. 41, s. 1 (a). 
 
 10 . Cheque given in Algiers on London by an English- 
 man for money borrowed in order to pay losses at baccarat, 
 an illegal game in England. Baccarat is not an illegal 
 game according to French law. The legality of the cheque 
 must be determined by English law, arid the payee cannot 
 
 (0 Shaw v. Benson (1883), 11 Q. B. D. 563, C. A. As to a com- 
 pany or society formed before 1862, see Shaw v. Simmons (1883), 12 
 Q. B. D. 117; and as to effect of illegal society subsequently register- 
 ing, see Ex parte Poppleton (1885), 14 Q. B. D. 379. 
 
 («) Houden v. Haigh (1840), 10 A. & E. 1033. 
 
 (x) Monetary Advance Co. v. Cater (1888), 20 Q. B. D. 785. 
 
 (y) Lilley v. Rankin (1887), 56 L. J: Q. B. 248. 
 
 (z) Ex parte Pyke (1878), 8 Ch. D. 754, O. A. 
 
 (o) Woolj v. Hamilton, (1898) 2 Q. B. 337, C. A. (horse racing 
 is a "game" within the meaning of the 9 Anne, u. 19, ahd 
 & 6 Will. 4, c. 41). 
 
Consideration. lid 
 
 recover (6), but it seems that the payee can recover in an § 30. 
 action on the consideration (c) . 
 
 11. A stockbroker draws a cheque, leaving the payee's 
 name in blank. His clerk steals the cheque, and fills it 
 up by inserting the name of C, a book-maker, as payee, 
 and gives it to C. in payment of bets. If O. cashes the 
 cheque, the drawer can recover the amount from him (d) . 
 
 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 pro- 
 ceeding prohibited by statute must be distinguished from 
 a proceeding which is merely unauthorized (e) . 
 
 As regards relief in equity, e.g., by an order for the 
 delivery up and cancellation of the instrument, Lindley, 
 L. J., says: " A plaintiff is not entitled to relief in equity 
 on the ground of the illegality of his own conduct. In 
 order to obtain relief, he must prove, not only that the 
 transaction is illegal, he must prove also either pressure or 
 undue influence" (/). 
 
 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 bill void. Again, an 
 illegal consideration must be distinguished from a merely 
 void consideration (g) . 
 
 Rule 7 . When a bill is given for a consideration which Bills void by, 
 by statute expressly makes it void, it is, as against the statute - 
 party who gave it, void in the hands of all parties 
 whether immediate or remote (h). For example: 
 
 A. draws a bill on B. payable to his own order. B. 
 accepts it for a consideration which by statute avoids it. 
 
 (6) Moulis v. Owen, (1907) 1 K. B. 746, C. A., Moulton, L.J., 
 dissenting'. 
 
 (c) Saxby v. Fulton, (1909) 2 K. B. 208, C. A. 
 
 \d) Paine v. Sevan (1914), 30 T. L. R. 395. 
 
 (e) Me Coltman (1881), 19 Ch. D. 64, C. A. 
 
 (/) Jones v. Merionethshire Building Society, (1892) 1 Ch. at 
 p. 182, C. A. 
 
 (g) Fitch v. Jones (1855), 5 E. & B. 238 ; and Belfast Banking Co. 
 v. Ddherty (1879), 4 Ir. L. R. Q. B. D. 124. 
 
 Qi) Edwards v. Sick (1821), 4 B. & Aid. 212; Shillito v. Theed 
 (1831), 7 Bing. 405, decided on 9 Anne, e. 19, before the passing of 
 5 & 6 Will. 4, e. 41. 
 
20 Bills of Exchange Act, 1882. 
 
 S 30- A. indorses it to C, who takes it for value and without 
 notice. C. can sue A. (i)j but he 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 the Gaming Act, 1710 (9 Anne, 
 c. 19), bills or notes given for money won by "gaming 
 or playing at cards, tables, dice, tennis, bowles or other 
 game or games, or by betting on the sides or hands of such 
 as do game at the same" are made void; but by the 
 Gaming Act, 1835 (5 & 6 Will. 4, c. 41), such bills or 
 notes are no longer to be void, but are to be deemed to 
 have been given for an illegal consideration, and money 
 paid thereon is to be recoverable as a debt (k). By the 
 Gaming Act, 1845 (8 & 9 Vict. c. 109), s. 19, all contracts 
 by way of gaming and wagering are made null and void. 
 The result is that bills or notes which come within the 
 purview of 9 Anne, c. 19, must be dealt with as given for 
 an illegal consideration, while bills or notes arising out 
 of other gaming or Wagering transactions are deemed 
 merely to be given for a 'Paid consideration (I). 
 
 The Gaming Act, 1892 (55 & 56 Vict. c. 9), makes null 
 and void any promise to pay any person any money paid 
 by him in respect of any contract rendered void by the Act 
 of. 1845 (11). 
 
 If any part of the consideration is illegal, the holder 
 (not being a holder in due course) cannot recover on the 
 instrument (to) . 
 
 As regards card games, at any rate, the law in Scotland 
 is similar to the law in England (n) . 
 
 As to trading with the enemy, see ante, p. 73. 
 
 (0 Edwards v. Dick (1821), 4 B. & Aid. 212. 
 
 0) Ibid.; Seed v. Wiggins (1862), 13 C. B. N. S. 220: 32 L. J. 
 C. P. 131. 
 
 (K) For limits of this latter provision, see Crawley v. White (1898), 
 78 L. T. N. S. 167. 
 
 (I) Lilley v. Rankin (1887), 56 L. J. Q. B. 248 (gambling on 
 Stocfc Exchange). 
 
 (II) See, e.g., Safery v. Meyer, (1901) 1 K. B. 11, C. A. 
 (m) Cf. Moults v. Owen, (1907) 1 K. B. at p. 753, O. A. 
 (») Tyler v. Maxwell (1892), 30 Sc. L. B. 583, 584. 
 
Transfer. 121 
 
 §31. 
 
 Negotiation of Bills. 
 
 31. (1) A bill is negotiated when it is trans- Negotiation 
 i erred from one person to another in such a 
 manner as to constitute the transferee the holder 
 ■of the bill (o). 
 
 See " holder " and " issue " defined by sect. 2, ante. 
 See the negotiation of a bill or note distinguished from the 
 ■sale of goods, by Holroyd, J. (p), the transfer of shares 
 in a company, by Byles, J. (q), and the transfer of an 
 •assignable Scotch bond, by Blackburn, J. (r); and see 
 note to sub-sect. (3). 
 
 (2) A bill payable to bearer is negotiated by bui to bearer. 
 ■delivery. 
 
 See " bearer " and " delivery " defined by sect. 2. As 
 to delivery for a special purpose, see sect. 21, ante. By 
 -sect. 8 (3), ante, 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. 
 
 (3) A bill payable to order is negotiated by Bm to order, 
 the indorsement of the holder completed by 
 delivery. 
 
 As to indorsement, see sect. 2 and sect. 32. By 
 sect. 8 (4), mite, a bill is payable to order which is ex- 
 pressed to be so payable, or which is expressed to be pay- 
 fa) Cf. New York Negotiable Instruments Law, § 60; JAoyd's 
 Bank v. Cooke, (1907) 1 K. B. at p. 808, O. A. 
 
 (jj) Wookey v. Pole (1820), 4 B. & Aid. at p. 10, comparing them 
 •with money. 
 
 (q) Swan v. N. B. Australasian Co. (1863), 2 H. & O. at pp. 184, 
 185; 32 L. J. Ex. 273. 
 
 (r) Crouch v. Credit Fonder (1873), L. R. 8 Q. B. at p. 381. 
 
122 Bills of Exchange Act, 1882. 
 
 § 31- able to a particular pei'son, and does not contain words- 
 prohibiting transfer, or indicating an intention that it 
 should not be transferable. As to restrictive indorse- 
 ments, see sect. 35, post. An individual who personates- 
 the holder, or who makes title through a forged indorse- 
 ment, is not the holder (s) . 
 
 The nature of negotiation is thus described by Lord 
 (then Mr. Justice) Blackburn:—" In the notes to Miller 
 v. Bace (t), 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 transferable, 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 
 bond fide, if the transferor himself have not a good title to- 
 il, 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 payable to bearer, by 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 " (uj. 
 
 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. 
 
 («) Sect. 24; of. Smith v. Union Bank (1875), L. R. 10 Q. B. at 
 pp. 2$5, 296; and see note, ante, p. 82. 
 (0 1 Smith, L. C. ed. 12, p. 525. 
 («) Crouch v. Credit Fonder (1873), L. R. 8 Q. B. 374, at p. 381- 
 
Transfer. 123 
 
 (4) Where" the holder of a bill payable to his § 31. 
 order transfers it for value without indorsing- it, Transfer of 
 the transfer gives the tranferee such title as the without er 
 transferor had in the bill (a?), and the transferee in indorsement - 
 addition acquires the right to have the indorse- 
 ment of the transferor (y). 
 
 Illustrations. 
 
 l."The holder of a bill payable to order transfers it to D. for 
 value without indorsing it. D. cannot sue the acceptor in his own 
 name, or negotiate the bill by indorsing it to E. («). 
 
 2. The drawer of an accepted bill, payable to drawer's order, 
 discounts it with 0., but by mistake omits to indorse it. C. 
 indorses the bill in blank in the drawer's name. He cdnnot 
 recover from the acceptor, for he had no right to indorse (a* 
 but the drawer could be compelled to indorse (6). 
 
 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 bill (c). 
 If C. dies, the Court will compel his executor or administrator 
 to indorse (d). 
 
 4. The drawer of an accepted bill payable to drawer's order 
 transfers it for value to C. without indorsing it. C. returns the 
 bill to the drawer for his indorsement. The drawer destroys it. 
 C. has no claim against the acceptor (e). 
 
 5. The payee of a bill payable to his order deposits it in June 
 as security with X., but without indorsing it. In July he is 
 restrained by injunction from negotiating the bill. In October 
 
 O) Whistler v. Forster (1863), 14 C. B. N. S. at p. 258; 32 L. J. 
 C. P. at p. 163, per Willes, J. ; Ex parte Pike (1879), 40 L. T. N. S. 
 529; New York Negotiable Instruments Law, § 79. 
 
 (» Earrop 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 Rode v. Sims (1830). 
 1 B. & Ad. 521. As to enforcement of order by Court to indorse, see 
 sect. 14 of the Judicature Act, 1884, post, p. 393. 
 
 (z) Earrop v. Fisher (1861), 10 C. B. N. S. at p. 203, Byles, J.; 
 and Cunliffe v. Whitehead (1837), 3 Bing. N. C. at p. 830. 
 
 (a) Earrop v. Fisher (1861), 10 C. B. N. S. 196; 30 L. J. C. P. 
 283. 
 
 (6) Walters v. Neary (1904), 21 T. L. R. 146. 
 
 (c) Ex parte Mowbray (1820), 1 Jac. & W. 428. Indorsement 
 should negative personal liability. Indorsement by bankrupt is, it 
 seems, equally good: Ex parte Rhodes (1837), 3 Mont. & Ayr. 217. , 
 
 '(d) Of! Watkins v. Maule (1820), 2 Jac. & W. 243. 
 
 (e) Edge v. Bwnford (1862), 31 L. J. Ch. 805. , 
 
124 Bills op Exchange Act, 1882. 
 
 § 81. hfi gives X. his indorsement. This is a negotiation of the bill 
 and a breach of the injunction (/) . 
 
 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 
 dot quod non habet. 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 to the same rule as money, and if 
 such an instrument be transferred in good faith for value 
 before it is over-due, it becomes available in the hands of 
 the holder, notwithstanding fraud which would have ren- 
 dered 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 respect- 
 ing 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 indorse- 
 ment, 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 "(h). , 
 
 indorsement (5) Where any person is under obligation to 
 sentative. indorse a bill in a representative capacity, he 
 
 may indorse the bill in such terms as to negative 
 
 personal liability (i). 
 
 See sect. 16 (1), ante, as to indorsements limiting or 
 negativing liability,' and sect. 26, ante, as to indorsements 
 in a representative capacity. 
 
 (/) Day v. Longhurst (1893), 62 L. J. Ch. 334. 
 
 (g) Whistler v. Forster (1863), 14 C. B. N. S. 248; see, too. 
 Lancaster Bank v. Taylor (1869), 1 Amer. R. 71; Clark v. Whitaher 
 (1871), 9 Amer. It. 286; New York Negotiable Instruments Law, 
 § 79, and cases cited in Crawford's edition. 
 
 (A) Whistler v. Forster (1863), 14 C. B. N. S. at pp. 257, 258; 
 32 L. J. C. P. p. 163. 
 
 (») New York Negotiable Instruments Law, § 74. 
 
1 eopy. 
 
 Transfer. 125 
 
 32. An indorsement in order to operate as a § 32. 
 negotiation must comply with the following con- Requisites of 
 
 j- , • i - " a valid 
 
 ClltlOnS, namely : indorsement. 
 
 (1) It must be written on the bill itself and be 
 signed by the indorser. The simple signature 
 of the indorser on the bill, without additional 
 words, is sufficient (k). 
 
 An indorsement written on an allonge, or on a ^"f 6 ,, 01, 
 " copy " of a bill issued or negotiated in a 
 country where "copies" are recognized, is 
 deemed to be written on the bill itself. 
 
 Illustrations. 
 
 1. 0., 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. (J). 
 ■ 2. C, the holder of a note, signs it and writes thereon, " I 
 bequeath — Pay the within to D., or his order, at my death," and 
 gives it to D. This is not an indorsement, but an attempted 
 testamentary gift, invalid under the Wills Aot(m). 
 
 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 
 indorsement (o). 
 
 By sect. 2 " indorsement " means an indorsement 
 completed by delivery. As to delivery, see sect. 21, ante. 
 As to negotiation, see sect. 31 . As to signature by agent, 
 see sect. 91, post. As to indorsement of bill drawn in a 
 set, see sect. 71, post. 
 
 It has been held that where a bill broker who has 
 discounted bills re-discounts them with his bankers, and 
 instead of indorsing each bill gives a general guarantee, 
 he can prove against the acceptor for the amount he has to 
 
 (k) New York Negotiable Instruments Law, § 61. 
 
 (Z) Richards v. Frankum (1840), 9 C. & P. at p. 225. 
 
 (m) Mitchell v. Smith (1864), 33 L. J. Ch. 596. 
 
 (») Cf. Harrop v. Fisher (1861), 10 O. B. N. S. at p. 204; 30 
 L. J. C. P. 286, and Rose v. Sims (1830), 1 B. & Ad. 521. 
 
 (o) Re Barrington (1804), 2 Scho. & Lef. 112; cf. Ex parte 
 Harrison (1789), 2 Brown C. G. 614. 
 
* 26 Bills of Exchange Act, 1882. 
 
 § 32. pay under his guarantee and interest, if the bills are 
 dishonoured (p) . 
 i An indorsement on the face of a bill is valid (q) .. 
 
 When there is no room on a bill for further indorse- 
 ments, a slip of paper, called an "allonge," may be 
 attached thereto. It becomes part of the bill, and 
 indorsements may be written thereon (r). 
 
 Some of the foreign codes contain minute provisions 
 to 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 
 stuck 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. 273. * 
 
 Partial (2) It must be an indorsement of the entire 
 
 indorsement. , ... .... . 
 
 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 (s). 
 
 Illustrations. 
 
 1. 0., the holder of a bill for 1001., indorses it, "Pay 501. to 
 D. or order, and 501. to E. or order." This is invalid. Neither 
 D. nor B. can sue or further indorse (t). 
 
 2. 0., the holder of a bill for 1001., indorses it, "Pay D. or 
 •order 301." This is invalid, unless 0. also acknowledge the receipt 
 of 1QI. (u). 
 
 , (p) Ex parte Bishop (1880), 15 Ch. D. 400, C. A. 
 
 (?) Young v. Glover (1857), 3 Jur. N. S. Q. B. 637; Ex parte 
 Yates (1858), 2 De G. & J. 191; 27 L. J. Bank. 9. 
 
 (r) Cf. Monmohunee v. Secretary of State (1874), 13 Bengal L. E. 
 359. Cf. New York Negotiable Instruments Law, § 61, and eases 
 .cited in Crawford's- edition. 
 
 (s) Cf . New York Negotiable Instruments Law, § 62, which repeats 
 "this sub -section, and adds that " where the instrument has been paid 
 in part, it may be indorsed as to the residue." 
 
 (*) Cf. Heilbut v. Nevill (1869), L. B. 4 O. P. at p. 358; Conovef 
 v. Earl (1868), 26 Iowa, 169. See Nouguier, § 665-. 
 
 («) Hawkins v. Cardy (1699), 1 Ld. Raym. 360. 
 
Transfer. 127 
 
 A partial indorsement, purporting to split the right of § 82. 
 action on a bill, is invalid as a negotiation, but may 
 operate as an authority to receive payment of the amount 
 thereby specified 1 (v) . 
 
 (3) Where a bill is payable to the order of two Several 
 
 . , payees or 
 
 or more payees or indorsees who are not indorsees. 
 partners all must indorse, unless the one 
 indorsing has authority to indorse for the 
 others (x). 
 
 Illustrations. 
 
 1. Bill payable "to the order of C. and D." D. alone indorses 
 It to E. This is insufficient. E. cannot sue the acceptor (y~). 
 
 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 " C. and D., or the order of either of them." 
 C alone indorses it. This is sufficient (z). 
 
 Qu. in Illustration 2, as to the liability of D. as in- 
 dorser ? Where a dividend warrant is payable to the order 
 of two or more persons the custom is to pay on the indorse- 
 ment of any one of them; and by sect. 97 (3) (d), post, 
 the usages with respect to dividend warrants are expressly 
 saved. 
 
 (4) Where, in a bill payable to order, the payee Misdescnp- 
 
 i . i i • , i "i • tion of payee 
 
 or indorsee is wrongly designated, or his r indorsee. 
 name is mis-spelt, he may indorse the bill as 
 therein described, adding, if he think fit, his 
 proper signature (a). 
 
 Illustration. 
 A bill is indorsed to J. Smythe. The man's real name is T. 
 
 (v) Cf. Beilbut v. Nevill (1869), L. R. 4 O. P. at p. 358; Conover 
 -v. Earl (1868), 26 Iowa, 168. See Nouffuier, § 665. 
 
 («) New York Negotiable Instruments Law, § 71. 
 
 (y) Carvick v. Vickerv (1781), 2 Dougl. 652; cf. Heilbut v. Nevill 
 <1869), L. R. 4 C. P. at pp. 356, 358, per Willess, J. 
 
 (z) Watson, v. Evans (1863), 32 L. J. Ex. 137. 
 
 (a) Cf. New York Negotiable Instruments Law, § 73. 
 
128 Bills of Exchange Act, 1882. 
 
 § 32. Smith. He can validly negotiate the bill by indorsing it as 
 J. Smythe(o). 
 
 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 his individual name or vice 
 versa? — e.g., John Smith trades as "Brown and Co." 
 A bill is drawn payable to the order of " Brown and Co." 
 He indorses it as John Smith. Is the presentment for 
 payment of this bill by the indorsee a due presentment? 
 In Massachusetts it seems it is (c) . The point was raised 
 in' Walker v. Matidomld (d), but the decision proceeded on 
 the ground that- there was a prior indorsement in blank,, 
 and therefore the bill was payable to bearer. Such an in- 
 dorsement is clearly irregular, if not invalid (e). 
 
 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, the wife of John 
 Jones." The form sometimes adopted, viz., " Mrs. John 
 Jones," is clearly irregular, though perhaps not invalid: 
 see note to sect. 91, post. 
 
 [ 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. 147), 
 death (post, p. 147), execution (post, p. 148), bankruptcy 
 (post, p. 148). See also dissolution of partnership (ante, 
 p. 81). 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 
 
 (*) Watson v. Evans (1863), 32 L. J. Ex. 137; and cf. Willis v. 
 Barrett (1816), 2 Stark. 29; of. sect. 7 (l),ante. 
 
 (o) Bryant v. Eastman (1851), 61 Mass. B. 111. 
 
 (d\ Walker v. Macdonald (1848), 2 Exch. 527. 
 
 (e) Cf. Bank of Montreal v. Exhibit Trading Co. (1906), 11 Com. 
 Cas. 250, note made payable to an unincorporated company. After 
 incorporation the note is indorsed by the company. The indorsement 
 is irregular. 
 
Transfer. 12M 
 
 president. A bill bought by the bank is indorsed "pay § 32. 
 
 to the order of C, cashier." The " X. Bank " can sue on 
 
 the bill in the corporate name, and D . the president oan 
 validly indorse it away without a previous indorsement 
 by C. (/). The expediency of this exception is doubtful, 
 but it has been adopted by § 72 of the New York Nego- 
 tiable Instruments Law. 
 
 (5) Where there are two or more indorsements Order of 
 
 i «n i-i i • t i , i 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 
 
 • i -r. i , • , 1 • indorsement. 
 
 special. It may also contain terms making 
 it restrictive. 
 
 33. Where a bill purports to be indorsed con- Conditional 
 ditionally the condition may be disregarded by 
 the payer, and payment to the indorsee is valid 
 whether the condition has been fulfilled or not ($*). 
 
 Illustration. 
 
 An indorsement running, Pay to the order of C. " on the arrival 
 of the ship Swallow at Calcutta," or " on his marriage with D.," 
 would he conditional. See sect. 11 (2). 
 
 Compare sect. 35, post, as to restrictive indorsements. 
 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 (h) . This was 
 hard on him'. If he dishonoured the bill he might be liable 
 in damages, and yet it might be impossible for him to find 
 out if the condition had been fulfilled. 
 
 indorsement. 
 
 (/) Watervliet Bank v. White, 1 Denio, 609; First Nat. Bank v. 
 Hall (1871), 44 New York R. 395. 
 
 (g~) Cf . New York Negotiable Instruments Law, § 69, which further 
 provides that " any person to whom an instrument so indorsed is nego- 
 tiated will hold the same or the proceeds thereof subject to the rights 
 of the person indorsing conditionally." 
 
 Qi) Eobertson v. Kensington (1811), 4 Taunt. 30. 
 
 c. 9 
 
130 
 
 BiLts of Exchange Act, 1882. 
 
 §33. 
 
 Under this section, as between indorser and indorsee the 
 condition would presumably be operative. If the indorsee 
 received payment without the condition being fu^ 116 **' £ e 
 could not sue the indorser, and he would 1 moreover hold the 
 proceeds in trust for the indorser. The continental codes 
 do not recognise conditional indorsements. Sect. 52 oi 
 the Indian Negotiable Instruments Act, 1881, appears to 
 preserve the common law rule. 
 
 indorsement 34.^ (1) An indorsement in blank specifies no 
 indorsee, and a bill so indorsed becomes payable 
 
 to bearer. 
 
 Special 
 indorsement. 
 
 Illustration. 
 
 Bill payable to the order of John Smith. He signs on the 
 back, " John Smith." Thia 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. 1 
 hereby undertake that if this bill be dishonoured, I wJl indemnify 
 the bearer, on receiving due notice thereof. 
 
 By sect. 31 (2), ante, a bill payable to bearer is 
 negotiated by delivery (*) . 
 
 Under French Code, Arts. 137, 138, an indorsement in 
 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 in- 
 dorsement (It) . 
 
 (2) A special indorsement specifies the person 
 to whom, or to whose order, the bill is to be 
 
 payable. 
 
 Illdsteations. 
 
 1. "Pay D. or order.'' 
 
 2. "Pay to D. & Co.," which in legal effect is "Pay D. &Oo. 
 or order." See sect. 8 (4). 
 
 (j) See Peacock v. Modes (1781), 2 Dougl. at p. 636, per Lord 
 Mansfield ; and see indorsement in blank distinguished from special 
 indorsement, per Wilde, C.J., Harmer v. Steele (1849), 4 Exch. at 
 p. 15; per Parke, B., Bobarts v. Tucker (1851), 16 Q. B. at p. 579; 
 and per Erie, C.J., Law v. Parnell (1859), 7 C. B. N. S. at p. 285; 
 29 L. J. C. P. at p. 19. 
 
 (k) Nouguier, §§ 747 — 760; and see Bradlaugh v. De Rin (1870), 
 L. R. 5 C. P. 473, Ex. Oh. 
 
Transfer. 131 
 
 3. "Pay to the order of the D. Company," which in legal 8 34 
 effect is " Pay the D. Company or order " (Z). - — 
 
 indorsement. 
 
 A bill specially indorsed is payable to the indorsee 
 therein designated, and can only be negotiated by his 
 indorsement (m). Under sect. 8 (3), ante, a special in- 
 dorsement following an indorsement in blank controls the 
 effect of the indorsement in blank. 
 
 (3) The provisions of this Act relating to a Provisions 
 payee apply with the necessary modifications to * p pi y p t a yee 
 an indorsee under a special indorsement. indorsee. 
 
 Sec sects. 7 and 8, ante, as to payee. 
 
 (1) When a bill has been indorsed in blank, Conversion of 
 
 any holder may convert the blank indorsement special 
 
 into a special indorsement by writing above the 
 
 indorser's signature a direction to pay the bill 
 
 or to the order of himself or some other 
 
 person (n). 
 
 Illustration. 
 
 The holder of a bill, indorsed by C. in blank, writes over O.'s 
 signature the words, "Pay to the order of D." The holder who 
 does this is not liable as an indorser, but the transaction operates 
 as a special indorsement from C. to D. (0). 
 
 Striking out Indorsements. — The holder may at any striking out 
 time {e.g., at the trial after the plaintiff has finished his indorsements, 
 ■case) (p) strike out any indorsement which is not necessary 
 to his title. The indbrser, whose indorsement is inten- 
 tionally struck out, and all indorsers subsequent to him, 
 are discharged from their liabilities; aliter if the indorse- 
 
 es Soares v. Glyn (1845), 8 Q. B. 24, Ex. Ch. See aeot. 8 (5). 
 
 (m) See sect. 31 (3) ; and Earrop v. Fisher (1861), 30 L. J. G. P. 
 283 
 
 (n) Cf. New York Negotiable Instruments Law, § 65. 
 
 (0) Vincent v. Horlock (1808), 1 Camp. 442; cf. Hirsch field v. 
 Smith (1866), L. R. 1 C. P. 340; German Exchange Law, Art. 12; 
 and TsougKier, §§ 747, 748. 
 
 (?0 Mayer v. Jadis (1833), 1 M. & Rob. 247; Byles, 154. 
 
 9(2) 
 
132 Bills of Exchange Act, 1882. 
 
 § 34. ment be struck out by, mistake (q). Qu. if the present 
 " r system of open pleading affects the necessity for striking- 
 
 out indorsements where the action, is against the acceptor? 
 The holder may, in some cases, make title through a 
 person whose indorsement is struck out (r) . Indorsements 
 for collection may be struck out by the owner of the 
 bill (s), 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 (t). 
 
 Kestriotive 35. (i) 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 " (u). 
 
 Illusteations. 
 
 The following are restrictive: — 
 
 1. " Pay D. or order for tie use of X." (a;). 
 
 2. "Pray pay the money to my use" (y). 
 
 3. "Pay the contents to my servant for my use"(z). 
 
 4. " The within must 'be credited to D., value in account " (a). 
 
 5. "Pay the contents to my use," or "Pay the contents to the 
 use of X.," or " Carry this bill to. the credit of X.'' (6). 
 
 6. "Pay D. or order for our use, value received in 
 account" (c). 
 
 (?) Wilkinson v. Johnson (1824), 3 B. & C. 428; cf. New York 
 Negotiable Instruments Law, § 78, which embodies this statement. 
 
 Or) Fairelough v. Pavia (1854), 9 Exch. at p. 695 ; but cf . Bartlett 
 v. Benson (1845), 14 M. & W. 733. 
 
 (s) Dugan v. United States (1818), 3 Wheat. 173; Bank of Utica 
 v. Smith (1820), 18 Johns. 229, New York. 
 
 (t) Callow 4. Lawrence (1814), 3 M. & S. 95; German Exchange 
 Law, Art. 55. See also sect. 59 (2), post. 
 
 (u) Cf . New . York Negotiable Instruments Law, § 63, and cases 
 cited in Crawford's edition. 
 
 (#) Evans v. 'Cramlington (1687), 1 Show. 4; 2 Show. 509, Ex. Oh. 
 
 (y) Snee v. Prescott (1743), 1 Atk. at p. 249. 
 
 (z) Edie v. East India Co. (1761J, 2 Burr, at p. 1227, Wilmot, J. 
 
 la) Ancher v. Bank of England <1781), 2 Dougl. 637/ 
 
 (6) Cf. Rice v. Stearns (1807), 3 Mass. R. at p. 226. 
 
 (c) Wilson v. Holmes (1809), 5 Mass. B. 543. 
 
Transfer. 13H 
 
 7. "Pay D. or order for the account of X." (d). § 35. 
 
 8. "Pay D. or order for my use" (e). 
 
 9. "Pay to the order of D. & Co., under provision for my 
 note in favour of X."(/). 
 
 10. "Pay D. & Co. or order for collection" (g). 
 
 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 (h); 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 (i) . 
 
 The mere omission to add words of negotiability to a 
 special indorsement does not make it restrictive: see 
 sect. 8 (1) and (4), ante. 
 
 In an unreported case a bill indorsed in Germany " fur 
 mich, &c," was held to be restrictive, as being an indorse- 
 ment " for my account," but it was afterwards agreed 
 that this was a mis-translation, and that the words meant 
 merely " as for me," and were not restrictive (fc). 
 
 (2) A restrictive indorsement gives the indorsee Restrictive 
 the right to receive payment of the bill and to indorsement - 
 sue any party thereto that the indorser could have 
 sued(^), but gives him no power to transfer his 
 rights as indorsee unless it expressly authorize 
 him to do so (m). 
 
 (d) Treuttel v. Barandon (1817), 8 Taunt. 100; Blaine v. Bourne 
 (1875), 23 Amer. R. 431. But as to a cheque crossed "for account 
 payee," see. National Bank v. Silke (1890), 1 Q. B. 439. 
 
 («) Sigoumey v. Lloyd (1828), 8 B. & C. 622; affirmed, 5 Bing. 
 525, Ex. Ch. 
 
 (/) Wedlake v. Hurley (1830), Lloyd & Welsby, 330; 1 C. & J. 83, 
 
 («/) Sweeney v. Easter (1863), 1 Wallace, 166, Sup. Ct. U. S.; 
 Merchants' Bank v. Henson (1884), 53 Amer. R. 5; Williams, Beacon 
 $ Co. v. Shadbolt (1885), 1 O. & E. 529; cf. German Exchange Law, 
 Art. 17. 
 
 (A) Potts v. Meed (1806), 6 Esp. 57; Murrow v. Stuart (1853), 8 
 Moore, P. C. 267. 
 
 (i) Buckley v. Jackson (1868), L. R. 3 Ex. 135. 
 
 (A) Haarblicker v. Baerselmann (1914), Times, 14th October. 
 
 (0 Evans v. Cramlington (1687); 2 Show. 509, Ex. Ch.; Wilson v. 
 Holmes (1809), 5 Massachus. R. 543; cf. German Exchange Law, 
 Art. 17. 
 
 (?») Lloyd "v. Sigoumey (1829), 5 Bing. at p. 532, Ex. Ch.; cf, 
 Pothier, No. 89; German Exchange Law, Art. 17; New York Nego- 
 tiable Instruments Law, § 67. 
 
134 Bills of Exchange Act, 1882. 
 
 § 36. Illustrations. 
 
 1. Bill indorsed "Pay D. for my account." D. cannot by 
 indorsing it to E. authorize E. to collect it. Aliter if the 
 indorsement ran, "Pay D. or order for my account "(to). 
 
 2. Bill indorsed "Pay D. or order for collection per account of 
 C. Bank." If the 0. Bank receives payment before maturity, D. 
 cannot recover from the acceptor, although he has credited the 
 
 C. Bank with the amount of the bill (o). 
 
 / 
 
 It has never been attempted to make the payer 
 responsible 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 (p). 
 
 Illustrations. 
 
 1. C. indorses a bill " 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. (q). 
 
 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(r). The action must be brought by 0. (s). 
 
 3. 0. indorses a bill "Pay D. or 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 (t) . 
 
 4. A. draws a bill on B., and indorses it to 0. 0. indorses it, 
 "Pay D. or order for my use." The bill is dishonoured, and 
 
 D. sues A. the drawer. If A. have any defence against 0. he 
 may set it up against D. (u). 
 
 (») Lloyd "v. Sigoumey (1829), 5 Bing. at p. 532. 
 
 (o) Williams, Deacon | Co. v. Shadbolt (1885), 1 C. & E. 529, per 
 Cave, J. 
 
 (p) Trevttelv. Barandon (1817), 8 Taunt. 100; Lloyd v. Sigoumey 
 (1829), 5 Bing. at p. 531; Sweeney v. Easter (1863), 1 Wallace, R. 
 166, Sup. Ct. XJ. S.; German Exchange Law, Art. 17; New York 
 Negotiable Instruments Law, § 67. 
 
 (?) Lloyd \. Sigoumey (1829), 5 Bing. 525, Ex. Ch. 
 
 (r) Wedlahe v. Hurley (1830), Lloyd & Welsby, 330; 1 C. & J. 83. 
 
 (s) Ibid, at pp. 332, 88, per Vaughan, B. 
 
 (0 Treultel v. Barandon (1817), 8 Taunt. 100. If D. had not been 
 X.'s agent, C. must have brought the action. 
 
 (w) Wilson v. Holmes (1809), 5 Mass. E. 543. 
 
Transfer. 135 
 
 Where a bill is indorsed restrictively the relations § 35. 
 
 between indorser and indorsee are substantially those of 
 
 principal and agent (x) . 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 (y) . 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 (z). 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 
 statement of the value received makes the indorsement 
 operate as a procuration or agency indorsement (a) . 
 Pothier (Nob. 23 and 88—90) has worked out the results 
 with great clearness. 
 
 36. (1) Where a bill is negotiable in its origin How long 
 it continues to be negotiable until it has been negotiable" 88 
 (a) restrictively indorsed or ^b) discharged by 
 payment or otherwise. 
 
 " A bill of exchange," says Lord Ellenborough, in 
 language a little too wide, " is negotiable ad infinitum 
 until it has been paid by, or discharged on behalf of, the 
 acceptor " (b). See sects. 59 — 64 and 68 as to discharges, 
 and sect. 35 (2) as to restrictive indorsements. The char- 
 acter and incidents of negotiability depend on the time of 
 negotiation. As to negotiation, see sect. 31. As to 
 transfer of an incomplete bill, see sect. 20, ante. 
 
 The fact that an action has been brought on a dis- After action 
 honoured bill does not determine its negotiability; but bought. 
 
 (2) Cf. Potts v. Reed (1806), 6 Esp. at p. 59; Rice v. Stearns 
 (1807), 3 Massachusetts R. at p. 532. 
 
 (y) Williams, Deaoon £ Co. v. Shadbolt (1885), 1 C. & E. 529, 
 Cave, - J. 
 
 (<s) Cf. Cook v. 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 Jessel, M.R., in Re Halletfs Estate 
 (1879), 13 Ch. D. at pp. 708—711, O, A. 
 
 (a) Cf. French Code, Art. 138; Souguier, §§ 744 et seq. 
 
 (b) Callow v. Lawrence (1814), 3 M. & S. at p. 97; cf. Leamtt v. 
 Putnam (1850), 3 New York R. at p. 497; New York Negotiable 
 Instruments Law, § 77. 
 
136 Bills of Exchange Act, 1882. 
 
 § 36. if a bill be transferred, after action brought, to embarrass 
 
 ■ the defendant, his remedy is by application to the 
 
 Court (c). If judgment were obtained, the bill would be 
 extinguished by merger as between the defendant and the 
 plaintiff or any subsequent party. 
 
 Negotiation t%\ When an overdue bill is negotiated, it can 
 
 of overdue \ / « •-> 
 
 bill. only be negotiated subject to any deteet ot 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. 
 
 Illustrations. 
 
 1. Note payable to C.'s order made for an illegal consideration. 
 0. indorses it, when overdue, to D. D. cannot recover from the 
 maker (d). 
 
 2. Bill obtained from the drawer for a special purpose. C, in 
 fraud of that purpose, indorsee the bill when overdue to D. D. 
 cannot recover from the acceptor (e). 
 
 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. 0. takes the bill 
 subject to the agreed condition, though he had no notice of it (/). 
 
 4. Bill accepted for an illegal consideration. The drawer in- 
 dorses it before maturity to C, who takes it for value and without 
 notice. C. indorses the bill when overdue to D. D. can sue all 
 parties, for 0. had a good title (gr). 
 
 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-off against D. (h). 
 
 6. Action by third indorsee of a bill against the first indorser. 
 Although the plaintiff took the bill when overdue, the defendant 
 
 (c) Beuters v. Townsend (1864), 33 L. 3. Q. B. 301; of. Woodward 
 v. Pell (1868), L. R. i Q. B. 55. 
 
 (<f) Amory v. Meryweather (1824), 2 B. & C. 573. 
 
 (e) Lloyds. Howard (1850), 15 Q. B. 995; cf. Redfem v. Rosenthal 
 (1902), 86 L. T. 855, C. A. 
 
 (/; Holmes v. Kidd (1858), 28 L. J. Ex. 112, Ex. Ch. 
 
 (ff~) Chalmers v. Lanion (1808), 1 Camp. 383; Faircloughv. Pavia 
 (1854), 9 Exoh. 690; of. sect. 29,(3), ante. 
 
 (h) Oulds v. Harrison (1854), 10 Exoh. 572; Em parte Swan (1868), 
 L. B. 6 Eq. 344. The indorsement of a bill, in this respect, differs 
 from the ordinary assignment of a chose in action: Rozburghe v. Cox 
 (1880), 17 Ch. D. 520, O. A. 
 
Traksfer. 137 
 
 cannot set-off a debt due to him from an intermediate holder and S 36 
 indorser(i). a 
 
 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 (fc). 
 
 8. The manager of the " X. Bank " abstracts moneys belong- 
 ing to the bank, and purchases therewith an overdue bill of 
 exchange, which he negotiates to D. The "X. Bank," and not 
 D. is entitled to the bill, and can prove against the acceptor's 
 estate if he become bankrupt (I). 
 
 9. A bill payable three months after date is accepted to accom- 
 modate the drawer. After the bill is overdue the drawer indorses 
 to C. for value. 0. can recover from the acceptor (m). 
 
 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 bill. 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 bill as 
 .against 0. (m). 
 
 As to the term " negotiation," see sect. 31 (1), ante, 
 -and as to the term " defect of title," see sect. 29 (2), ante. 
 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 " (0). 
 
 After long controversy it now seems settled that mere 
 absence of consideration is not. an equity which attaches 
 to a bill (p), but that if there be an agreement express or 
 implied not to negotiate an accommodation bill after 
 maturity, the agreement constitutes an equity attaching 
 
 («) Whitehead v. Walker (1842), 10 M. & W. 696. 
 
 \lc) Brown v. Davies (1789), 3 T. R. 80. 
 
 (0 Ex parte Oriental Bank (1870), L. R. 5 Ch. 358; cf. Lee v. 
 .Zagury (1817), 8 Taunt. 114; and, by analogy, Me Gfomersall (1875), 
 1 Ch. D. 137. As to the limits of the principle that the rights of a 
 person not a party to the bill may constitute an equity attaching to it, 
 see Warren v. Ilaigh(lST5), 65 New York R. 171. 
 
 («0 Stein v. Yglesias (1834), 1 C. M. & R. 565. 
 
 00 Alcock v. Smith, (1892) 1 Ch. 238, O. A. 
 
 (0) Brown v. Davies (1789), 3 T. R. 80, at p. 82. 
 
 (p) Sturtevant v. Ford (1842), 4 1. Is Gr. 101; Ex parte Swan 
 <1868), L. R. 6 Eq. 344. 
 
138 Bills of Exchange Act, 1882. 
 
 § 36. to it (g) . In New York it has been held that if an acoom- 
 
 taodation bill be 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 (r). 
 
 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 he 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 (s) . 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 r 
 §§ 6?9, 680. By German Exchange Law, Art. 16, the 
 indorsee of an overdue and protested bill acquires only 
 the rights of the indorser. 
 When deemed A bill payable otherwise than on demand is overdue- 
 overdue. after the expiration of the last day of grace (t). As to 
 
 instruments on demand^ see sub-sect. (3), and as to- 
 dishonoured 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 1 . 
 
 Bills negotiated abroad. — The provisions of this section 
 perhaps do not apply to a bill which is negotiated in a. 
 
 (?) Parr v. Jewell (1855), 16 C. B. 684, Ex. Oh.; Carruthers v. 
 West (1847), 11 Q. B. 143, is not to the contrary. See ratio deeidendi r 
 per Wightman, J. 
 
 (r) Chester v. Dorr (1869), 41 New York E. 279. 
 
 (s) Graves v. Key (1832), 3 B. & Ad. at p. 319. 
 
 \t) Cf. Leftley v. Mills (1791), 4 T. E. 170. 
 
Transfer. 139 
 
 foreign country, where no distinction is recognised between § 36. 
 overdue and current bills (?«) . 
 
 (3) A bill payable on demand is deemed to be Bill on 
 overdue within the meaning and for the purposes overdue! w 
 of this section, when it appears on the face of 
 
 it to have been in circulation for an unreasonable 
 length of time. What is an unreasonable length 
 of time for this purpose is a question of fact (x). 
 
 See sect. 10, defining what. bills are payable on demand. 
 Compare sect. 40 (3), post, as to the test of reasonable 
 time. 
 
 By sect. 86 (3), post, notes payable on demand, which 
 are regarded as continuing securities, are exempted from 
 this sub-section (y). 
 
 By virtue of sect. 73, post, 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 previous 
 decisions are reviewed, a cheque negotiated 8 days after 
 date was held not to be on the footing of an overdue 
 bill (z), but a cheque taken 2 months after date has been 
 held to be stale (a) . Most banks refuse to pay a cheque 
 6 months old without special orders from their customer, 
 but there seems to be no general practice on this point . 
 
 (4) Except where an indorsement bears date Presumption 
 after the maturity of the bill, every negotiation is negotiation. 
 prima facie deemed to have been effected before 
 
 the bill was overdue. 
 
 This is declaratory (6) ; but apart from the general rule 
 
 (u) Mcock v. Smith, (1892) 1 Ch. 238, affirmed on the ground that 
 the evidence disclosed no defect of title. See note to sect. 72 (3), post. 
 
 (a;) Cf. New York Negotiable Instruments Law, § 92, and cases 
 cited in Crawford's edition. 
 
 (y) Brooks v. Mitchell (1841), 9 M. & W. 15. 
 
 (s) London and County Bank v. Groonie (1881), 8 Q. B. D. 288; 
 cf . MothsehUd v. Corney (1829), 9 B. & O. 388, six days. 
 
 (a) Serrel v. Derbyshire Railway Co. (1850), 9 O. B. 811; cf. Ex 
 -parte Hughes (1880), 43 L. T. N. S. 577, as to dishonoured cheques; 
 and Himmelman v. Hotaling (1870), 6 Amer. R. 600. 
 
 (5) Lewis v. Parker (1836), 4 A. & E. 838; cf. sect. 30 (2), ante, 
 and New York Negotiable Instruments Law, § 75. 
 
140 
 
 §36. 
 
 Bill known 
 to be dis- 
 honoured. 
 
 Bills of Exchange Act, 1882. 
 
 there is no presumption as to the exact time of negotia- 
 tion (c), and it seems that circumstances of strong sus- 
 picion, short of direct evidence, may rebut the prima 
 facie presumption, and make it a question for the 
 jury whether the bill was negotiated before or after 
 maturity' (d). 
 
 (5) Whiere 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 i sub-section shall affect the 
 rights of a holder in due course. 
 
 Illustration. 
 
 A bill is dishonoured by non-acceptance, and afterwards in- 
 dorsed; by 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 
 discharge of "the former (e). 
 
 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 by non-acceptance. 
 In America the decisions are conflicting. As to nego- 
 tiating a bill after action brought, see note to sub-sect. (1). 
 
 Negotiation 
 of bill to 
 
 37. Where a bill is negotiated back to the 
 party already drawer, or to a prior indorser(^), or to the ac- 
 ■ ceptor(A), such party may, subject to the provisions 
 
 (c) Anderson v. Weston (1840), 6 Bing. N. C. 296. 
 
 Id) Bounsall v. Harrison (1836), 1 M. & W. 611. 
 
 (e) Crossley v. Ham (1811), 13 East, 498; of. Whitehead v. Walker 
 (1842), 10 M. & W. 696, where the bill was dishonoured by non- 
 acceptance, though it is spoken of as overdue; Hornby v. McLaren 
 (1908), 24 Q\ L. K. 494 (cheque known to have been dishonoured). 
 <■ (J) Affirms Crossley v. Ham (1811), 13 East, 498; and quoad hoc 
 overrides Goodman v. Harvey (1836), 6 Nev. & Man. 372. 
 
 (a) Cf. sect. 59 (2), post. 
 
 (A) See note to sect. 59 (1), post, and sect. 61, post. 
 
Transfer. 141 
 
 of this Act (i), re-issue and further negotiate the § 37. 
 bill, but he is not entitled to enforce payment of 
 the bill against any intervening party to whom 
 he was previously liable (k). 
 
 Illustrations. 
 
 1. Bill payable three months after date is indorsed by the 
 holder to the acceptor. At any time before maturity the acceptor 
 may re-issue the bill and indorse it away (I) . 
 
 2. The drawer of a bill payable to drawer's order indorses it 
 to 0., 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 B. (m). 
 
 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 E., who indorses it back to the payee. The 
 payee, in his character of third indorsee, can sue D. and B., 
 for they have no claim against him as a prior indorser (o). 
 
 5. The drawer of a bill indorses it to 0., who has previously 
 undertaken to be responsible for the price of goods supplied to 
 the acceptor. C. indorses the bill back to the drawer. The 
 drawer, in his character of indorsee, can sue 0., for C. has no 
 remedy over against him(p). 
 
 6. 0. undertakes to guarantee a debt due from B. to A. B. 
 signs a blank acceptance, which C. indorses. The document is 
 then handed to A., who fills it up as a bill payable to drawer's 
 order, inserting his own name as drawer. 0., though an indorser, 
 is liable to A., the drawer on this bill (q). 
 
 By sect. 36 (1), a bill is negotiable until it is restric- 
 tively indorsed or discharged. As to discharges, see 
 
 (i) See sects. 59 — 64, as to discharges; and especially sect. 59 (2) 
 as to taking up bills, and sect. 61, as to coincidence of right and 
 liability. 
 
 (Jo) Cf. New York Negotiable Instruments Law, § 80, which sub- 
 stitutes " personally " for " previously." 
 
 (Z) Attenborough v. Mackenzie (1856), 25 L. J. Ex. 244. 
 
 (ni) Cf. Hubbard v. Jackson (1827), 4 Bing. 390; Jones v. Broad- 
 hursi (1850), 9 C. B. 173. This is subject to sect. 59 (2), (3). 
 
 (») Cf. Bishop v. Hayward (1791), 4 T. R. 470; Wilders v. Steven* 
 (1846), 15 M. & W. at p. 212. 
 
 (o) Cf. Morris v. Walker (1850), 15 Q. B. at p. 594. There is here 
 no circuity of action. 
 
 (j>) Wilkinson v. Vnwin (1881), 7 Q. B. D. 636, C. A. 
 
 (?) Glenie v. Bruce Smith, (1'908) 1 K. B. 263, C. A. 
 
142 Bills of Kxchange Act, 1882. 
 
 § 37. sects. 59 — 64, post, and note that an accommodation bill 
 "is discharged when paid at maturity by the person accom- 
 modated, 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 (r), and as the cases show, cesmnte ratione cessat 
 ipsa lex. 
 
 Bights of the 33 The rights and pQwers f the holder of a 
 bill are as follows : — 
 
 (1) He may sue on the bill in his own name(s) : 
 
 (2) Where he is a holder in due course, he 
 holds the bill free from any defect of title of 
 prior parties as well as from mere personal 
 defences available to prior parties among 
 themselves, and may enforce payment against 
 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 (w). 
 
 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, ante. See " holder " 
 defined by sect. 2, ante; " holder for value " defined by 
 sect. 27 (2), (3), ante; and "holder in due course" 
 defined by sect. 29, ante. As to "defects of title," see 
 sect. 29 (2), ante, and as to " payment in due course," see 
 
 (r) Holmes v. Durhee (1883), 1 C. & E. 23. 
 
 (s) Cf. Crouoh v. Credit Foncier (1873)', L. R. 8 Q. B. at pp. 380— 
 382; New York Negotiable Instruments Law, § 90. 
 
 (0 Cf . Crouch v. Credit Foncier (1873), L. R. 8 Q. B. at pp. 380— 
 382 ; and see note to sect. 31 (3), ante. 
 
 («) Marston v. Allen (1841), 8 M, & W. at p. 504, per Alderson, B., 
 stating the principle. 
 
Transfer. 143 
 
 ^sect. 59, post. It is to be noted that sect. 45 of the § 38. 
 
 Larceny Act, 1916 (6 & 7 Geo. 5, c. 5j0), which provides ~ 
 
 for the revesting of stolen property in the true owner when 
 the thief is convicted', does not apply to negotiable instru- 
 ments . A defective title must be distinguished from entire 
 -absence of title. A person who claims under a forgery 
 has no title, and can give none. He is not the " holder " of 
 the instrument (x) . 
 
 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 
 incident 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 holder's 
 rights of action and proof may perhaps be stated in the 
 following rules: — 
 
 Rights of Action and Proof. 
 
 Rule 1. The holder of a bill is entitled to maintain an Holder's right 
 action thereon in his own name against all or any of the of a * 1011 - 
 parties liable thereon (y), unless it is shown that he holds 
 the bill adversely to the true owner (z). 
 
 It is immaterial that the holder never had any interest 
 in the bill- (a), or that he has parted with his interest 
 therein (6). 
 
 When the holder of a bill sues as agent for another Suing as 
 person, or when he sues wholly or in part for the benefit a s ent ° r 
 of another person, any defence or set-off available against 
 that person is available pro tmnto against the holder (c) . 
 Fox Example : — 
 
 1. C, thejholder of a bill, indorses it to D. for collec- 
 
 (x) But as to transfers abroad and the effect of forgery, see notes 
 "to sect. 72 (2), post, as to conflict of laws. 
 
 Qy) See R. S. C Ord. XVI. rule 5; and as to inferior Courts, 
 18 & 19 Vict. c. 67, s. 6. 
 
 (s) Jones v. Broadhurst (1850), 9 C. B. 173; Agra Bank v. Leighton 
 (1866), L. R. 2 Ex. at pp. 63 — 65. See holder defined by sect. 2. 
 
 (a) Law v. Parnell (1859), 7 C. B. N. S. 282; 29 E. J. O. P. 17, 
 
 (b) Williams v. James (1850), 15 Q. B. 498; Poirier v. Morris 
 (1853), 2 E. & B. 89; cf. Megrath v. Gray (1874), E. R. 9 C. P. 216. 
 
 (c) Lee v. Zagury (1817), 8 Taunt. 114; Royce v. Barnes (1846), 
 52 Massachus. 276; Agra Bank v. Leighton (1866), L. R. 2 Ex. 56; 
 Re Anglo-Greek Navigation Co. (1869), L. R. 4 Oh. 174; Pothier, 
 No. 41; cf. Bechervaise v. Lewis (1872), L. R. 7 C. P. 372. 
 
144 
 
 Bills of Exchange Act, 1882. 
 
 §38. 
 
 Action on 
 bill payable 
 
 specially. 
 
 Action on 
 bill payable 
 to bearer. 
 
 tion. 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 100L 
 indorsed by C. 0. pays D. 601. D. sues the acceptor. 
 As to 601. D. sues as trustee for C, and only as to 40/!. on 
 his own account. As regards 601. any set-off which the 
 acceptor may have against C . is equally available against 
 
 D. (e). 
 
 3. A. draws a bill on B., payable to his own order, for 
 the price of goods supplied, which B. accepts. A. then 
 indorses the bill to C. A. cannot sue B. for the price of 
 the goods supplied while the bill is outstanding in the 
 .hands of C, and it is immaterial that he gets the bill back 
 before the trial (/) . 
 
 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 (g) . 
 
 Rule 2. Subject to the rules as to transmission by act 
 of law, when a bill is payable to a particular person or 
 persons, or to his or their order, an action thereon must 
 be brought in the name of such person or persons (h) . 
 For example: — 
 
 1. A bill is specially indorsed to the firm of " D. & 
 Co." An action on it must be brought in the name of the 
 firm. The managing 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 payment of a debt due to the firm. 
 An action on it must be brought in D.'s name, and not in 
 the name of the firm (i) . 
 
 In the case given in Example 1, the managing partner 
 might indorse the bill in the firm's name to himself or in 
 blank, and then sue. 
 
 Rule 3. Subject tp Rule 1, when a bill is payable to 
 
 (d) De la Chaumette v. Bank of England (1829), 9 B. & C. 208, as 
 explained by Currie v. Misa (1875), L. R. 10 Ex. at p. 164, Ex. Oh. 
 
 (e) Thornton v. Maynprd (1875), L. R. 10 C. P. 695. 
 
 (/) Bams v. Reilly, (1898) 1Q.B.1; followed Re A Debtor, (1908) 
 1 K. B. 344, 349, C. A. 
 
 (g) London and Bombay Bank v. Narraway (1872), L. R. 15 
 Eq. 93. 
 
 (K) Attwood v. Rattenbury (1822), 6 Moore, at p. 583; Pease v. 
 Hirst (1829), 10 B. & C. 122. 
 
 («) Bawden v. Howell (1841), 3 M. & Gr. 638. 
 
Transfer. • 145 
 
 bearer an action thereon may be brought in the name of § 38. 
 
 any person who has either the actual or the constructive 
 
 possession thereof; and constructive possession, jointly 
 with others, is sufficient to entille the pessessor to sue alone. 
 For example:— 
 
 1. C, the holder of a bill, indorses it in blank to D. to 
 collect it for him. Either C. or D. may sue the 
 acceptor (Zr) . 
 
 2. A hill accepted by B. is indorsed in blank by C. 
 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 the nature of their joint in- 
 terest is (I). 
 
 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 (jri). 
 
 4. A bill indorsed in blank is handed to the manager of 
 a company in payment of a debt due to the company. 
 The manager may sue on it in his own name (n). 
 
 5. A bill indorsed in blank is given to D.'s solicitor, 
 who commences an action on it against the acceptor in D.'s 
 name. D. knows nothing of the matter, but after the 
 action has proceeded some way he is told of it, and then 
 gives his consent. D. can maintain the action (o). 
 
 6. D., the holder of a bill indorsed in blank, does not 
 wish to sue on it in his own name. He accordingly asks 
 E. to sue on it. E. consents. E. gets a copy of the bill, 
 and it is agreed that he shall have the original when 
 wanted. E. commences an action against 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 constructive possession of the 
 bill (p). 
 
 7. A note payable to bearer is handed to the solicitor 
 
 (/fc) Clark v. Pigot (1699), 12 Mod. 193; cf. Stones v. Butt (1834), 
 2 Cr. & M. 416. 
 
 (I) Ord v. Portal (1812), 3 Camp. 239; cf. Sordasnz v. Leach 
 (1816), 1 Stark. 448; Low v. Gnpestake (1828), 3 C. & P. 300. 
 
 (m) Lindley, 3rd ed. p. 485; Attwood v. Uattenbury (1822), 6 
 Moore, 579; Wood v. Connon (1843), 5 Q. B. 292., as to joint holders; 
 Conover v. Earl (1868), 26 Iowa R. 168, aa to holders in common. 
 
 («) Law v. Parnell (1859), 7 C. B. N. S. 282. 
 
 (o) Ancona v. Marks (1E62), 31 L. J. Ex. 163. 
 
 (p) Emmett v. Tottenham (1853), 8 Exch. 884; cf. Olcott v. 
 Bathbone (1830), 5 Wend. 490, New York. 
 
 c. 10 
 
146 ' Bills of Exchange Act, 1882. 
 
 § 38. of a loan society in payment of a debt due to the society. 
 I)., 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 (q). 
 Holder's right Rule 4. When a party to a bill becomes bankrupt, the 
 of proof. holder, who could have maintained an action against such 
 
 party if he had remained solvent, can prove against his 
 estate in bankruptcy (r) . 
 
 Any defence, set-off, or counter-claim available in. an 
 action is available against a proof (s) . 
 
 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, 
 1914, § 30, 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 (t) — so, too, the holder of an accepted' bill 
 may prove if the drawer or an indorser becomes bank- 
 rapt (w) . But as regards amount, the right to prove is 
 narrower in, some respects 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 (x) and creditors holding security (if). These it is 
 beyond the scope of the present work to discuss in detail. 
 See material provisions of the Bankruptcy Act, 1914, set 
 out post, p. 411. 
 
 Trmsmission by Act of Law. 
 
 The Act deals only with transfer by negotiation, that 
 is, transfer according to the law merchant. It leaves 
 
 (?) Jenkins v. Tongue (1860), 29 L. J. Ex. 147. 
 
 (r) Cf. Bankruptcy Act, 1914 (4 & 5 Geo. 5, c. 59), s. 59 ; of. 
 Re Charles (1873), L. R. 8 Oh. at p. 537. As to holder having a 
 lien only, see notes to sect. 27 (3), ante. 
 
 (s) See, e.g., Rohde v. Proctor (1825), 4 B. & C. 517, want of 
 notice of dishonour; Ex parte Manners (1811), 1 Rose, 68, want of 
 a stamp; cf. Jones v. Gordon (1877), 2 App. Cas. 627, H. L. 
 
 (i) Cf. Wood v. Be Mattos (1865), L. R, 1 Ex. 91, Ex. Ch. 
 
 (m) Cf. Starey v. Barnes (1806), 7 East, 435. 
 
 ,(») See, e.g., Re Douglas (1872), L. R. 7 Ch. 490, foreign bank- 
 ruptcy; approved Banco Be Portugal v. Waddell (1880), 5 App. Cas. 
 at p. 165; Williams' Bankruptcy, ed. 11, p. 142. 
 
 (y~) See, e.g., Re Howe (1871), L. R. 6 Ch. 838, conditional accept- 
 ance- As to lumping bills for purposes of proof, see Re Morris, 
 (1899) 1 Ch. 485, C. A. As. to cross-accommodation acceptances, seo 
 Williams' Bankruptcy, ed. 11, pp. 156, 158, discussing the rule in 
 Ex p. Walker (1798), 4 Ves. 373. 
 
Transfer. 147 
 
 untouched the rules of general law which regulate the § 38. 
 
 transmission of bills by aot of law, and their transfer as 
 
 choses in action or chattels according to the general law; 
 see sect. 97 (2), post. The law on these points may, 
 perhaps, be summed up in the following rules: — 
 
 Rule 1. Since the Married Women's Property Act, Marriage. 
 1882 (45 & 46 Vict. c. 75), 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 (z), 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 
 possession (a). 
 
 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 (b). 
 
 Rule 2. On the death of the holder of a bill the title Death, 
 thereto passes to his personal representatives (executors 
 or administrators, as the case may be) (c). Thus: — 
 
 1. C, the holder of a bill payable to order, dies. His 
 administrator can enforce payment of it or indorse it 
 away, using his own name (d) . 
 
 2. C, the holder of a bill payable to order, dies, having 
 specifically bequeathed it to X. X. cannot sue on it or 
 indorse it away, unless he first-obtain the indorsement of 
 C.'s executor (e). 
 
 An executor or administrator who indorses a bill may, 
 in express terms, exclude personal liability: see sect 31 (5), 
 ante ; 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. 62. 
 When there are two or more executors, the indorsement 
 
 (z) Green v. Carlill (1877), 4 Oh. D. 882. 
 
 (a) Cf. Fleet v. Perrins (1868), L. R. 3 Q. B. at p. 541; affirmed 
 <1869), L. R. 4 Q. B. 500. 
 
 (6) Hart v. Stephens (1845), 6 Q. B. 937; Williamson. Executors, 
 7th ed. pp. 848—852. 
 
 (c) Williams on Executors, 10th ed. pp. 606, 661. 
 
 (cf) Rawlinson v. Stone (1746), 3 Wils. 1, Ex. Ch. He should 
 specify the capacity in which he indorses to make the title clear. 
 
 (e) Bishop v. Curtis (1852), 21 L. J. Q. B. 391. 
 
 10(2) 
 
148 
 
 Bills of Exchange Act, 1882. 
 
 § 38. of one is probably sufficient to transfer the property in 
 
 the bill (/). 
 
 Execution. ~Rule. 3. A bill may be seized 1 in execution by the 
 
 sheriff under a -writ of fieri facias (g). 
 
 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 (h) . 
 
 The language of the Judgments Act, 1838, post, p. 386, 
 is obscure and ungrammatical. Can the sheriff hand 
 over to the creditor or sell a bill payable to bearer? (£). 
 Tho Act gives him no power to indorse a bill payable to 
 order. Further, he is responsible 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 himself. As to execution 
 against bills and notes under the County Courts Act, 
 1888 (51 & 52 Vict. c. 43, §§ 147, 148), see post, p. 393. 
 
 Bankruptcy. Ji u \ e 4. if the holder of a bill, who is the beneficial 
 owner of it, become bankrupt, or if a bill be made payable 
 to a bankrupt for his own account, the title thereto vests 
 in his trustee in bankruptcy (fc); but subject to the next 
 rule (reputed ownership), if the holder of a bill is not the 
 beneficial owner of it, the title thereto does not pass to his 
 trustee in bankruptcy (J). Thus: — 
 
 1. C. indorses a bill to D., his agent, for some special 
 purpose. D. becomes bankrupt. The title to the bill doeB 
 
 not vest in D.'s trustee (m). 
 
 2. D., by fraud, induces C. to indorse a bill to him. 
 
 D. 
 
 (/) Williams on Executors, 10th ed. p. 716. There is more doubt 
 as to administrators, ibid. p. 720, n. 
 
 (g) 1 & 2 Viot. c. 110, s. 12. As to a cheque drawn by the 
 Accountant-General of the Court of Chancery but not issued, of. 
 Watts v. Jeferyes (1851), 3 M.ac. & G. 422; Courtoy v. Vincent 
 (1852), 21 L. J. Ch. 291. 
 
 (/>) 1 & 2 Vict. c. 110, s. 12, set out post, p. 386. 
 
 («) Cf. Mutton v. Young (1847), 4 C. B. at p. 373. 
 
 (7c) Cf, Bankruptcy Act, 1914 (4 & 5 Geo. 5, c. 59), § 38; cf. Green 
 v. Steer (1841), 1 Q. B. 707. 
 
 (I) Bankruptcy Act, 1914, § 38; Harrison v. Walker (1792). 
 Peake, 111. 
 
 (m} Ex varte Armitstead (1828), 2 G. & J. 371; cf. Belcher v. 
 Campbell (1845), 8 Q. B. at p. 11. See, e.g., Thompson v. Giles 
 (1824), 2 B. & C. 422, bill entered "short" by banker; Ex parte 
 Pli't. Re Brown (1889), 6 Morrell, 81, cheque specially intrusted for 
 collection. ' ' : 1 | I 
 
Tkansfkk. 149 
 
 becomes bankrupt. The title to the bill does not pass to § 38. 
 D.'s trustee (n). i 
 
 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 (o) . Where a bill is 
 indorsed to an undischarged bankrupt, it seems he may 
 sue on it in his own name, unless his trustee interferes and 
 objects (p). 
 
 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 (q). 
 
 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 
 available act of bankruptcy (r). 
 
 Exception 3. — An accommodation bill given for the 
 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 the bill to C, who gives value. 
 The indorsement is valid. C. can sue B. (s). 
 
 The terms of the Bankruptcy Act, 1914, are very wide, 
 see § 38-; but the cases quoted 1 probably still hold good. 
 
 Rule 5. If the holder of a bill, who is not the bene- Eeputed 
 ficial owner of it, become bankrupt, the title thereto may ownership, 
 pass to his trustee in bankruptcy, as being in his reputed 
 ownership, provided — (a) that the bill constitutes "a 
 
 (») Harrison v. Walker (1792), Peake, 111. 
 
 (o) Of. Ex parte Buchanan (1812), 1 Rose, 280. 
 
 (*) Eerbert v. Sayer (1844), 5 Q. B. 965; approved, Jameson v. 
 Brick and Stone Co. (1878), 4Q. B. D. 208, O. A.; of. Cohen v. 
 Mitchell (1890), 25 Q. B. D. 262, at p. 269. 
 
 (?) Bankruptcy Act, 1914 (4 & 5 Geo. 5, o. 59), s. 45. As to 
 what constitutes such notice, see Ex parte Gilbey (1878), 8 Ch. D. 
 248, C. A. 
 
 (r) Bankruptcy Act, 1914, s. 45. 
 
 (s) Wallace v. Hardacre, (1807), 1 Camp. 45; Willis v. Freeman 
 (1810), 12 East, 656. 
 
150 Bills of Exchange Act, 1882. 
 
 § 38. debt due or growing due to 'him in tbe course of his 
 _ trade or business; " (b) that he held it at the commence- 
 ment of the bankruptcy with 'the consent and permission 
 of the true owner '(#) . It seems clear that a current bill 
 would constitute a " debt growing due " within the 
 meaning of the Act (w). 
 
 Transfer by Assignment. 
 
 OT*f ^ nment ®ule 6 . A bill may be transferred by assignment or 
 sale, 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 . (x) ; or by a voluntary deed constituting a de- 
 claration of trust in favour of D. (y), or by a written 
 contract of sale (z) . 
 
 A bill is a chattel: therefore it may be transferred as a 
 chattel (a) . A bill is a chose in action,; therefore it may 
 be assigned as a chose in action (6). It is clear that a 
 subsequent title under the 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 transfers it by delivery to E., who takes it for 
 
 (t) Bankruptcy Act, 1:914, s. 38 (2) (c); cf. Em parte Kemp 
 (1874), L. R. 9 Ch. App. at p. 389; Williams' Bankruptcy, ed. 11, 
 pp. 257, 272. 
 
 («) Ex parte Kemp (1874), L. R 9 Ch. at p. 388, Mellish, L.J. 
 As to the previous law, ef . Hombloiaer v. Proud (1819), 2 B. & Aid. 
 327; Thompson v. Giles (1824), 2 B. & C. 422. As to the effect on 
 a debt of a bill drawn by a bankrupt, see Se Goetz, (1898) 1 ft. B. 
 787, C. A. . 
 
 (x) Re JBarrington (1804), 2 Scho. & Lef. 112; cf. Lee v. Magrath 
 (1882), 10 Ir. L. K. 45, 313. 
 
 (y) Richardson x . Richardson (1867), L. K. 3 Eq. 686, as explained 
 in W'arriwer v. Rogers (1873), L. R. 16 Eq. 340; cf. Ex parte 
 Whitaker (1889), 42 Oh. D. 119, O. A., distinguishing a voluntary 
 note from a voluntary bond. 
 
 (z) Sheldon v. Parker (1874), 3 Hun. New York R. 498. 
 
 (a) Embirieos v. Anglo- Austrian Bank, (1905) 1 K. B. 677, C. A. 
 The validity of the transfer depends on the law of the country where 
 the bill is transferred. 
 
 (6) It may constitute a "book debt": Dawson v. Isle, (1906) 1 
 Ch. 633. 
 
Transfer. 151 
 
 value and without notice, E.'s title overrides D.'s(c). §38. 
 
 Qucsre, if a non-negotiable note can be assigned, there 
 
 being an intention manifest on the instrument that it shall 
 not bo transferable (d) . Notice to a debtor who has given 
 a cheque or other negotiable instrument for his debt that 
 the debt has been assigned by the creditor can be disre- 
 garded by the debtor, even if the creditor who has assigned 
 the debt is the holder of the instrument (e). 
 
 Rule 7 . If the holder of a bill make delivery of it by Donatio 
 way of gift in contemplation of death and die, this is a mortu eautt. 
 valid donatio mortis causa (/). Thus: — 
 
 1. C, the holder of a note payable to bearer, hands it 
 to D. in contemplation of death. C. dies. The property 
 in the note passes to D . (g) . 
 
 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 bill passes to D. (h). 
 
 3. B. makes a note payable to C, and hands it to him 
 as a gift in contemplation of death. B. dies. C. (perhaps) 
 is not entitled to receive the amount out of B.'s estate (i). 
 
 4. C, 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 (fc). 
 
 It is clear that the gift of a bill or note does not create 
 a debt against the donor; but is this the principle of a 
 donatio "mortis oausd ? The law as to the gift of bills and 
 notes made by the donor requires reconsideration (I) . Most 
 of the recent cases have arisen on cheques where the 
 peculiar relations of banker and customer complicate the 
 matter: see post, p. 289. Qucere, 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? 
 
 (e) Cf. Sheldon v. ParJcer (1874), 3 Hun. R. 498; Aulton v. 
 Atkins (1856), 18 C. B. 249; and sect. 31 (4), ante. 
 
 (d) Cf . Briee > . Bannister (1878), 3 Q. B. D. at pp. 580, 581, per 
 Brett, L.J. 
 
 (e) Benoe v. Shearman, (18*98) 2 Ch. 582, C. A. 
 (/) Williams on Executors, 10th od. pp. 591— -600. 
 (q) Miller v. Miller (1735), 3 P. Wms. 356. 
 
 (h) Veal v. Veal (1859), 27 Beav. 303; Austin v. Mead (1880), 15 
 Ch. D. 651; Clement v. Cheeseman (1884), 27 Ch. D. 631. 
 
 Ci) Tate v Hilbert (1793), 4 Bro. C. O. 286; Jiolliday v. Atkinson 
 (1826), 5 B. & C. at p. 503; cf. Re Whitaker (1889), 42 Oh. D. 119, 
 afc t> 124 
 
 (*) Re Dillon (1890), 44 Ch. D. 76, O. A.; Re Wasserberg, (1915) 
 1 Ch. 195 (bearer bonds in box at bank, delivery of key to wife). 
 Q) Cf. Williams on Executors, 10th ed. 598—600. 
 
152 
 
 Bills op Exchange Act, 1882. 
 
 §39. 
 
 When pre- 
 sentment for 
 acceptance ia 
 necessary. 
 
 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, protest, or uotxe of dishonour, such party, 
 it seems, is also discharged from liability on the debt or other con- 
 sideration for which the bill was given (m). The holder's omission, 
 without lawful excuse, to perform his duties with reference to a bill, 
 is commonly called " laches " (»). As the Crown can dono 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 sight (o), 
 presentment for acceptance is necessary in order 
 to fix the maturity of the instrument. 
 
 (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 O). 
 
 Sub-sect. (2) settled a doubtful point, 
 declaratory (q) . 
 
 Sub-sect. (3) is 
 
 (m) See, e.g., Soward.v. Palmer (1818), 8 Taunt. 277; Peacock v. 
 Purssell (1863), 32 L. J-. C. P. 266, presentment for payment; Bridges 
 v. Berry (1810), 3 Taunt. 130, and Peacock v. Purssell, supra, as to 
 notice of dishonour; cf. also, Crowe v. Clay (1854), 9 Exch. 604, 
 Ex. Ch. (lost bill); Daniel, ed. 4, § 1276; Ckitty, ed. 11, p. 313; 
 Story, § 109. But see note, post, pp. 357, 358. Must the party 
 discharged be prejudiced by the omission? 
 
 (») Cf. Turner v. Haydon (1825), 4 B. & C. at p. 2, per 
 Abbott, C.J. 
 
 (o) See sect. 40, as to bills payable after sight. 
 
 {p) New York Negotiable Instruments Law, § 240, overriding, it 
 seems, Walker v. Stetson (1869), 2 Amer. R. 405. Erench law appears 
 to coincide with the English Act, see Nouguier, § 1008. 
 
 (y) Cf- Ramchum Mullick v. Luchmeechund Radakissen (1854), 9 
 Moore, P. C. at pp. 65, 66; German Exchange Law, Arts. 19 and 24. 
 
Presentment for Acceptance. 153 
 
 Where presentment is optional, the object of presenting § 39. 
 
 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 negligenoe (r) . A bill in the form " Pay without 
 ■acceptance " is valid (s) . Bills in this form are said to 
 be common in the French wine trade. 
 
 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 
 tho subject, and it is to be noted that rules as to present- 
 ment for payment necessarily differ in some respects from 
 rules as to presentment for acceptance, see post, p. 158. 
 
 (4) Where the holder of a bill, drawn payable Domiciled 
 •elsewhere than at the place of business or resi- forward late. 
 •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 
 presenting it for payment is excused, and does not 
 •discharge the drawer and indorsers(tf). 
 
 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 firm, but payable at a London Bank . It only reaches 
 
 (r) Pothier.No. 128; flouguier, § 462; Allen v. Suydam (1828), 20 
 Wend. 321, New York, as to date bills; see Bank of Van Biemen's 
 Land v. Victoria Bank (1871), L. R. 3 P. C. at p. 542, after sight bill. 
 
 (g) R. v. Kinnear (1838), 2 M. & R. 117 ; Miller v. Thomson (1841), 
 3 M. & Gr. 576 ; Nouguier, § 470. 
 
 (t) New York Negotiable Instruments Law, § 244. 
 
1( 5* Bills of Exchange Act, 1882. 
 
 § 39. 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 presentment to the drawees — an obviously incon- 
 venient 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. 
 
 T TOen°i 40. (1) Subject to the provisions of this Act (a), 
 
 bill payable when a bill payable after sight is negotiated, the 
 
 after siffht. . . _ . , ■ . 
 
 holder must either present it for acceptance or 
 megotiate it within a reasonable time. 
 
 (2) If he do not do so, the drawer and all 
 indorsers prior to that holder are discharged (z). 
 
 (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. 
 
 Illustrations. 
 
 1. A. in Windsor draws a bill on B. in London, payable one 
 month after sight. The holder keeps it lor four days before 
 presenting it for acceptance. It is then dishonoured. This may 
 not be an unreasonable delay (y). 
 
 2. A. in London draws a bill on B. in Bio, payable sixty days- 
 after sight. The payee holds it back for four months, during 1 
 which time Rio bills are at a discount. He then negotiates it-. 
 This may not be an unreasonable delay (z) . 
 
 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. Noi 
 reason for holding back is shown. This may be an unreasonable 1 
 delay (a) . 
 
 («) For the provisions referred to, see sect. 41 (2), post, which.: 
 deal with the excuses for non-presentment. 
 
 (») New York Negotiable Instruments Law, § 241. 
 
 (y) Fry v. Hill (1817), 7 Taunt. 397; cf. Shute v. Jiobim (1828),. 
 2 C. & P. 80. , 
 
 (z) Mellish v. Rawdon (1832), 9 Bing. 416. 
 
 (a) Straker v. Graham (1839), 4 M. & W. 721. 
 
Presentment for Acceptance. 155 
 
 4. A. in Calcutta draws a bill on B. in Hong Kong, payable § 40. 
 
 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 (6). 
 
 5. A. draws a bill on B., payable to 0. 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 ( c) . 
 
 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 to the interests of the drawers 
 and indorsers (d). 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? Under the continental 
 codes fixed limits of time for presentment are laid down. 
 The effect of this conflict of laws has not been considered. 
 
 41. (1 ) A bill is duly presented for acceptance Rules as to 
 which is presented in accordance with the follow- foraecept- 
 
 i , > ance, and 
 
 mg rules (e): excuses for 
 
 (a) The presentment must be made by or on nJnt" 76 '"' 
 behalf of the holder to the drawee or to some 
 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. He is not By whom, 
 necessarily the lawful holder (/). In an unreported case, 
 in December, 1876, the Court of Appeal dissolved an 
 injunction restraining the drawee from acoepting a bill 
 where the holder was alleged to have obtained it by 
 
 (6) Ramchum Mullick v. Luchmeechund Radakissen (1854), 9 
 Moore, P~. C. 46; cf. Godfray v. Coalman (1859), 13 Moore, P. C. 11. 
 
 (c) Straker v. Graham (1839), 4 M. & W. 721 (action for freight 
 for which bill had been given). 
 
 (d) Ramchum Mullick v. Luchmeechund Radakissen (1854), 9 
 Moore, P. C. 46; Wallace v. Agry (1827), 4 Mason, 336, Sup. Ofc. 
 U. S., per Story, J. 
 
 (e) Of. New York Negotiable Instruments Law, §§ 242, 243. 
 (/) Ci. Morrison v. Buchanan (1833), 6 O. & P. 18. 
 
156 
 
 Bills of Exchange Act, 1882. 
 
 §41. fraud (g). The holder need not present personally. Bills 
 are constantly forwarded, unindorsed, to an agent for him 
 to procure acceptance. The agent is bound to exercise 
 due diligence in presenting (h). " Ce n'est pas unique- 
 ment le porteur qui a qualite pour requerir l'acceptation: 
 cetto faculto appartient encore a oelui qui en est seulement 
 detenteur": Nouguier, § 462. Presentment for accept- 
 ance does not imply any warranty that the bill, and docu- 
 ments, if any, attached thereto are genuine (M) . 
 
 To -whom. The presentment, if not made to the drawee, must be 
 
 made to some one authorized to receive bills for accept- 
 ance (i). 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 (k). 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 (e). Reasonable diligence must be used to 
 find the drawee or some person authorized to act for him. 
 When the drawee is a trader it is clear that presentment 
 should be made to him at his place of business if possible. 
 
 Dayandhour. As to non-business day, see sect. 92, post. The Bank 
 Holidays Act, 1871 (34 & 35 Vict. c. 17), s. 2, provides 
 that when the day on which a bill should be presented for 
 acceptance is a bank holiday, it is to be presented on the 
 next business day. 
 
 " Reasonable hour," in the case of a trader, means 
 business hours, and in the case of a banker banking 
 hours (?). 
 
 Before A bill should clearly be presented for acceptance before 
 
 maturity. maturity (in). ,It may be accepted when overdue, see 
 sect. 18 ; butexcept in the case provided for by sect. 39 (4), 
 i.e., domiciled bill arriving late, such acceptance does not 
 preserve or revive the liability of the drawer and indorsers. 
 
 Qj) But an injunction will issue to prevent a bank from accepting 
 a bill payable on demand in violation of the statutory privileges of 
 the Bank of England, Bank of England v. Anderson (1836), 2 Keen, 
 328. 
 
 (A) Bank of Van Diernen's Land v. Victoria Bank (1871), L. R. 
 3 P. C. at p. 452; Nouguier, § 462. 
 
 (hh) Guarantee Trust Co. of Nevj York v. Eannay, (1918) 2 K. B. 
 623, C. A. 
 
 (i) Cheek v. Roper (1804), 5 Esp. 175. 
 
 (ft) Chitty on Bills, 11th ed. p. 196; Netherlands Code, Art. 176. 
 
 (1) Cf. Parker v. Gordon (1806), 7 East, 385; Elford v. Teed 
 (1813), lM.tS. 28, and note to sect. 45 (3), post, p. 165. 
 
 (m) O'Keefe v. Dunn (1815), 6 Taunt, at p. 307; Nouguier, § 456. 
 
Presentment for Acceptance. 157 
 
 In the case of *a bill which is due or payable on § 41. 
 
 demand, presentment for acceptance is merged in pre- 
 
 eentment 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 (w), which the holder perhaps might 
 refuse to take. Suppose a bill drawn on Edinburgh is 
 accepted payable in London. This is a general acceptance, 
 but it involves presentment in London in order to charge 
 tho drawer and indorsers. 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-acoeptanoe or non-pay- 
 ment (o). Considering the difference in the rules which 
 govern the two kinds of presentment, this might have ■ 
 important consequences. 
 
 (b) Where a bill is addressed to two or more Twoormoro 
 drawers, 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-pection may give rise to a difficulty if one of 
 tho drawees refuses to accept, for by sect. 19 (2) (e) an 
 acceptance whkh is not the acceptance of all the drawees 
 is a qualified'acceptance. As to' the consequences of a 
 qualified acceptance, see sect. 44, post. 
 
 (c) Where the drawee is dead presentment may Drawee dead. 
 be made to his personal representative (p) : 
 
 (d) Where the drawee is bankrupt," presentment Drawee 
 may be made to him or to his trustee (q) : 
 
 bankrupt. 
 
 (e) Where authorized by agreement or usage, Post office. 
 
 (») Cf. Bishop v. Chitty (1742), 2 Stra. 1195. 
 
 (o) Plato v. lieynolds (1863), 27 New York R. 586. 
 
 (p) Before this enactment the law on thi3 point was very doubtful. 
 Smith v. New South Wales BanJc (1872), 8 Moore, P. C. N. S. at 
 pp. 461, 462. Now the holder has an option: see sub-sect. (2) (a), 
 post. 
 
 (a) See " bankrupt " defined by sect. 2, ante, p. 4. Sub-sect. (2) (o) 
 makes the holder's option clear. 
 
158 
 
 Bills of Exchange Act, 1882'. 
 
 §41. 
 
 Exouies for 
 non-present- 
 ment for 
 acceptance. 
 
 a presentment through the post office is suffi- 
 cient (r). 
 
 (2) Presentment in accordance with these rules 
 is exeused, and a bill may be treated as dis- 
 honoured by non-acceptance — 
 
 (a) "Where the drawee is dead or bankrupt, or 
 is a fictitious person or a person not having 
 capacity to contract by bill (s) : 
 
 (b) Where, after the exercise of reasonable 
 diligence, such presentment cannot be 
 effected (t): 
 
 (c) Where, although the presentment has been 
 irregular, acceptance has been refused on 
 some other ground (m). 
 
 (3) The fact that the holder has reason to 
 believe that the bill, on presentment, will be dis- 
 honoured does not excuse presentment. 
 
 Sub-sect. (3) is declaratory (x). It, of course, only 
 applies to cases where presentment is obligatory. 
 Acceptance Comparing, presentment for acceptance *with present- 
 
 and payment men f; f or payment, it is clear that the two cases are 
 governed by somewhat different considerations. Speaking 
 generally, presentment for acceptance should be personal, 
 while presentment for payment should be local. A bill 
 
 compared. 
 
 (»•) Tttis enactment gives effect to the recognised practice among 
 English merchants. The practice is not recognised by the continental 
 codes. 
 
 (is). See " bankrupt " defined by sect. 2, ante, p. 4; and as to persons 
 not (having capacity to contract by bill, see sect. 22, ante. 
 
 (t) This is probably declaratory. Of. Smith v. New South Wales 
 Bank (1872), 8 Moore, P. C. ST. S. at pp. 461—463; also sect. 46 (2) 
 and sect. 50 (2>. 
 
 C«) This is, perhaps, new law, and is important, having, regard' to 
 tifae next sub-section.. Cf. New York Negotiable Instruments Law, 
 § 245. 
 
 (%) Ex parte Tondeur (1867), L. E. 5 Eq. at p. 165; Robinson v. 
 Ames (1822),, 20 John, at p. 149, New York; of. sect. 46 (2), and 
 
 sect. 50 (2). 
 
Presentment for Acceptance. 1&9 
 
 ■should be presented for payment where the money is. § 41. 
 
 Any one can then hand over the money. A bill should ~ 
 
 be presented for acoeptanoe to the drawee himself, for 
 
 he has to write the acoeptanoe; 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 cannot 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. 
 
 42. When a bill is duly presented for accept- Non-accept- 
 ance, and is not accepted within the customary customary 
 time, the person presenting it must treat it as consideration. 
 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 acoeptanoe 
 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. 
 
 The practice 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 (y). In reckoning the twenty-four hours non- 
 
 (j/~) Bank of Van Diemen's Land v. Victoria Bank (1871), L. R. 3 
 P. C. at pp. 542, 543; Story, § 237; French Code, 125; Nouguier, 
 § 537. But see Brooks' Notary, 6th ed. p. 78, as to alleged, practice 
 when it is thought unsafe to leave the bill with the drawee. The holder, 
 after exhibiting the bill to him, leaves a formal notice that the bill 
 lies for acceptance at a specified address. The Act leaves this point 
 open, as also does the New York Law. 
 
160 
 
 Bills op Exchange Act, 1882. 
 
 §42. 
 
 business days must he excluded (z) . The New York Nego- 
 tiable Instruments Law, § 224, provides that " the drawee 
 is allowed 24 hours after presentment in which to decide 
 whether or not he will accept the bill, but the acceptance 
 if given dates as of the day of presentation." 
 
 In a case in 1818, Bayley, J., says, " When a bilHs, in 
 the usual course of business, left for acceptance, it is the 
 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 (a) . The 
 holder's remedy is an action for damages. 
 
 Dishonour by 
 non-accept- 
 ance aud its 
 
 consequences. 
 
 43. (1)A bill is dishonoured by' non-accept- 
 
 ance- 
 
 (a) when it is duly presented for acceptance, 
 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 (b), 
 when a bill is dishonoured by non-acceptance, an 
 immediate right of recourse against the drawer 
 and indorsers accrues to the holder, and no pre- 
 sentment for payment is necessary (c). 
 
 As to the presentment for acceptance, see S3ct. 41; as 
 to the requisites of a valid acceptance, see sects. 17 and 
 
 (z) SanTe of Van Diemen's Land v. Victoria Bank (1871), L. R. 
 3 P. C. at pp. 546, 547, as to the effect of a short day — e.g., Saturday; 
 and see sect. 92. 
 
 (a) Jeune v. Ward (1818), 1 B. & Aid. 653, at p. 659. Under 
 § 225 of the New York Negotiable Instruments Law, if the draws* 
 wrong'.y retains or destroys the bill he is deemed to have accepted it. 
 
 (6) See sect. 65, post, acceptance for honour. 
 
 (c) Cf. New York Negotiable Instruments Law, §§ 246—248. 
 
Presentment for Acceptance. 161 
 
 19. By sect. 44 (1), the holder has an option to take or § 43. 
 refuse a qualified acceptance (d) . See also last section. * 
 As to excuses for not presenting for aooeptance, see 
 sect. 41(2). 
 
 According to English law the holder is under no obli- 
 gation 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 sus- 
 pended. The effect of this suspension on the Statute of 
 Limitations has not been considered. 
 
 The immediate right of recourse arising on non-accept- 
 ance is an exceptional right (e), and until quite recently 
 was peculiar to the English and American law (/) . Under 
 most of the continental codes the holder can only protest 
 the bill for non-acceptance, and demand security from 
 the drawer and indorsers (g) . 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), 
 hut 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 in- 
 dorsers; 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 dishonour has been received by the party sought 
 to be charged (h) . 
 
 44. (1) The holder of a bill may refuse to take Duties as 
 a qualified acceptance, and if he does not obtain Icclptanrel 
 an unqualified acceptance may treat the bill as 
 dishonoured by non-acceptance. 
 
 (d) It has been held in the United States that an agent for collection 
 has prima facie no authority to take a qualified acceptance: Walker 
 v. New York State Bank, 9 N. Y. Rep. 582. 
 
 O) Cf. Dunn v. O'Keefe (1816), 5 M. & S. at p. 289. 
 
 (/) Whitehead v. Walker (1842), 9 M. & W. at p. 516; Watson v. 
 Tarpley (1855), 20 How. at p. 519, Sup. Ct.U. S. 
 
 (ff) French Code, Arts. 119, 120. 
 
 (h) Castrique v. Bernabo (1844), 6 Q. B. 498. 
 
 C. 11 
 
162 Bills of Exchange Act, 1882. 
 
 § 44. (2) Where a qualified acceptance is taken, and 
 
 the drawer or an indorser has not expressly or 
 impliedly authorized the holder to take a qualified 
 acceptance, or does not subsequently assent there- 
 to, such drawer or indorser is discharged from his 
 liability on the bill.. 
 
 The provisions of this sub-section do not apply 
 to a partial acceptance, whereof due notice (i) 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 notion 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 (Ic). 
 
 As to what acceptances are qualified', see sect. 19, ante. 
 According to the continental codes, it seems that the 
 holder cannot refuse a partial acceptance (I). He can only 
 protest as to the balance. 
 
 In some trades, such as the East Indian, the practice 
 of accepting against delivery of bills of lading is so com- 
 mon, that an authority to take such an acceptance might, 
 perhaps, be implied (Ef). 'Sometimes, too, the terms of a 
 documentary bill or credit might be 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 (m) . 
 
 Sub-sect. (3) settles a doubtful point in favour of the 
 holder (n) . 
 
 («) Cf. Sebag v. Abitbol (1816), 4 M. & S. at p. 466. 
 (ft) Cf. New York Negotiable Instruments Law, § 230, which, 
 however, omits the second paragraph of sub-sect. (2). 
 
 (I) French Code, Art. 124; German Exchange Law, Art. 22. 
 
 (II) See the form of.aeeeptanee in Ex p. Brett (1871), L. E. 6 
 Chi App. 838. 
 
 (m) Cf. Bentinoh v. Dorrien (1805), 6 East, 199. 
 («) See subject discussed in ilowe v. Young (1820), 2 Bligh, 391, 
 H. L. 
 
Presentment foe Payment. 163 
 
 45. Subject to the provisions of this Aet(o) a § 45. 
 bill must be duly presented for payment. If it be Presentment 
 not • so presented the drawer and indorsers shall ° r parmen " 
 be discharged. 
 
 A drawer or indorser Who is discharged from his liability 
 on the bill, it seemis, ia also discharged from.' his liability 
 on the consideration theref br (p) . 
 
 The rules applicable to the drawer or indorser of a bill 
 apply equally to the indorser of a note (q) or cheque, but 
 they do not apply^to the maker of a note, who is some- 
 times 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: Nouguier, § 1076. Prac- 
 tically, then, protest is substituted' for presentment for 
 payment. Again, a distinction is drawn between the 
 drawer and the indorsers. Omission duly to protest dis- 
 charges the indorsers, but the drawer is not discharged, 
 unless he shows affirmatively that the drawee or acceptor 
 had funds to meet the bill (r) . 
 
 A bill is duly presented for payment which Rules. 
 is presented in accordance with the following 
 rules : — 
 
 (1) Where the bill is not payable on demand, At what time. 
 presentment must be made on the day it 
 falls due(s). 
 
 (o) See sect. 46, which deals with excuses for non-presentment and 
 delay, and sect. 39 (4), ante, which deals with the special case of an 
 unaccepted domiciled bill coming forward late. 
 
 (p) Peacock v. Purssell (1863), 32 L. J. C. P. 266. But see 
 post, p. 358. 
 
 (?) Cf. Gibb v. Mather (1832), 2 Gr. & J. at pp. 262, 263, Ex. Ch. 
 
 (»-) French Code, Arte. 117 and 170; Nouguier, §§ 1147—1165. 
 
 (s) As to calculating the due date, see sect. 14, ante. The provision 
 is declaratory: Philpot v. Sciant (1828), 4 Bing. at p. 720; New 
 York Negotiable Instruments Law, § 131; French Code, Art. 161; 
 see, e.g., Wiffen v. Roberts (1795), 1 Bsp. 262, second day of grace; 
 Prideaux v. Collier (1817), 2 Stark. 58, day after maturity. 
 
 11 (2). 
 
164 Bills of Exchange Act, 1882. 
 
 §45. (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(f). 
 In determining what is a reasonable time, 
 regard shall be had to the nature of the bill, 
 the usage of trade with regard to similar 
 bills, and the facts of the particular case. 
 
 As to when a bill is in legal effect payable on demand,, 
 see sect. 10, ante. This provision is modified by sect* 74, 
 post j 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 (u). As to notes see sect. 86, post. 
 
 Presentment (3) Presentment must be made by the holder 
 
 for payment. v ' * 
 
 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 
 diligence such person can there be found (x). 
 
 (i!) Cf. Moule v. Brown (1838), 4 Bing. N. O. 266, as to a cheque 
 cashed for the bearer ; and cf . New York Negotiable Instruments Law, 
 § 131, and notes in Crawford's edition. The second clause of the sub- 
 section is confined to bills of exchange. 
 
 (u) French Code, Art. 160; German Exchange Law, Art. 31. 
 
 (#) Cf. New York Negotiable Instruments Law, § 132. 
 
Peesentment for Payment, 165 
 
 The acceptor's obligation is to pay the holder, that is, § 45. 
 the person who can give a good discharge for the bill \y). 
 
 As to presentment through the post-office, see sub- ywnom - 
 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 (z) , He does not guarantee 
 its authenticity (a) . 
 
 If the bill 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), 
 post. 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, post. As to non-business days, see sect. 92, post. 
 The reasonableness of the hour must depend on whether Day and hour, 
 the bill is payable at a place of business or at a private 
 house. The payor is not bound to stay 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. (c); if at a private house, probably a presentment 
 up to bed-time would be sufficient (d). 
 
 In America presentments at 8 a.m. and 11 p.m. have 
 been held unreasonable: Daniel, § 348. 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 (e) . Possibly the same rule might 
 still be applied: see note, post, p. 169. 
 
 Speaking generally, it is the duty of the payor to have To whom, 
 the money ready on the appointed day at the appointed 
 
 (y~) See sect. 59, and cf. Walker v. Macdonald (1848), 2 Exch. at 
 p. 532; Cole v. Jessop (1854), 10 New York E. at p. 100. 
 
 (z) Sect. 52 (4); ef. Griffin v. Weatherby (1868), L. E. 3 Q. B. 
 at pp. 760, 761. 
 
 (as) Guarantee Trust Co. of New York v. Harnay (1918), 23 Com. 
 Cas. at p. 402, O. A.; (1918) 2 K. B. 623, 632, C. A. 
 
 (i) Elford v. Teed (1813), 1 M. & S. 28; Parker v. Gordon (1806), 
 7 East, 385; of. Whitaker v. Bank of England (1835), 1 0. M. & E. 
 750. 
 
 (c) Cf. Allen v. Edmundson (1848), 2 Exch. at p. 723; Morgan 
 v. Davison (1815), 1 Stark. 114, time 6.30 p.m.; Barclay v. Bailey 
 (1810), 2 Camp. 527, time 8 p.m. Have not business hours changed 
 since then? 
 
 (d) Triggs v. Neivnham (1825), 10 Moore, 249, time 8 p.m.; 
 Wilkins v. Jadis (1831), 2 B. & Ad. 188. 
 
 (e) Eenry v. Lee (1820), 2 Chitty, 124; Gamett v. Woodcock- 
 inn), 6 M. & S. 44. 
 
166 Bills op Exchange Act, 1882. 
 
 § 45. 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. 
 
 Duties of Agent.— A collecting agent is, of course, 
 liable to his principal if he does not use due diligence in 
 presenting a bill for payment and take the proper pro- 
 ceedings on dishonour (g) . The same rule applies to a 
 pledgee or person holding a bill as collateral security (h). 
 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 Avhen the sub-agent is a 
 notary, on the ground that he is a public officer (i) . 
 
 At what (4) A bill is presented at the proper place : — 
 
 (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 (k), or by the acceptor (?). If alternative places 
 of payment are specified 1 , presentment at either of such 
 places is sufficient (m) . 
 
 (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 (w). 
 
 (c) Where no place of payment is specified, 
 
 (/) De Bergareche v. Pillin (1826), 3 Bing. 476; Wilmot v. Williams 
 (1844), 7 M. & Gr. 1017; cf. Butterworth v. Le Despencer (1814), 3 
 M. & S. 150; Startup v. Maodonald (1843), 6 M. & Gr. at p. 624.. 
 
 (g) Cf . Lubbock v. Tribe (1838), 3 M. & W. at p. 621 ; Zysaght v. 
 Bryant (1850), 19 L. J. C. P. at p. 160, Maule, J.; and see DeveriU 
 v. Burnell (1873), L. R. 8 C. P. 475, measure of damage; Paget on 
 Banking, ed. 2, p. 287. 
 
 (A) Peaeocli v. Purssell (1863), 32 L. J. C. P. 266. 
 
 (i) Daniel, § 343; Parsons, p. 480; of. Paget, p. 288. 
 
 (ft) Gibb v. Mather (1832), 2 Cr. & J. 254; Walker v. Stetson 
 (1869), 2 Amer. B. 405 ; German Exchange Law, Art. 42. 
 
 (0 Saul v. Jones (1858), 28 L. J. Q. B. 37. 
 
 (ot) BeeeHng v. Gower (1816), Holt N. P. C. 313; of. Pollard v. 
 Berries (1803), 3 B. & P. 335. 
 
 (n) See Bine v. Allely (1833), 1 N. & M. 433; Buxton v. Jones 
 (1840), 1 M. & Gr. 83. 
 
Presentment for Payment. 167 
 
 and no address given, and the bill is pre- § 45 - 
 sented at the drawee's or acceptor's place 
 of business, if known, and if not, at his 
 ordinary residence if known (0). 
 (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 (p). 
 (5) Where a bill is -presented at the proper 
 place, and after the exercise of reasonable 
 diligence no person authorized to pay or 
 refuse payment can be found there, no further 
 presentment to the drawee or acceptor is 
 required. 
 
 Illustrations. 
 
 1. A bill is accepted "Payable at 1, Duke Street, London." 
 The acceptor dies. Presentment at 1, Duke Street, is sufficient, 
 without making search for the acceptor's executor (q) . 
 
 2. The acceptor of a bill accepts it payable at his banker's. 
 The bill must be presented at the bank. A presentment to the 
 acceptor personally is insufficient (r) . 
 
 3. A bill is addressed to "Mr. B., 1, Duke Street, London." 
 B. accepts it generally. The bill is presented at 1, Duke Street, 
 and the house is found shut up. This is sufficient («). 
 
 4. A bill is addressed to "Mr. B., 1, Duke Street, London." 
 B. accepts it generally. The holder takes the bill to 1, Duke 
 Street, and inquires for B. A woman living in the house informs 
 him that B. has left. This is sufficient (t). 
 
 5. A bill is accepted payable at a bank. When the bill matures 
 the bank is the holder of the bill, but the acceptor has no assets 
 
 (o) See Shell v. Britt (1823), 18 Mass. 412; Meyer v. Ribshetr 
 (1872), 47 New York R. at p. 270; Crosse v. Smith (1813), 1 M. & S. 
 at p. 554. 
 
 (i») Seo King v. Crowcll (1873), 14 Amer. R. 560; New York 
 Negotiable Instruments Law, § 133. 
 
 ' (?) Philpot v. Briani (1827), 3 0. & P. 244; cf. Wilkins v. Jodie 
 (1831), 2 B. & Ad. 188. 
 
 (r) Gibb v. Mather (1832), 2 Cr. & J. 254, Ex. Oh.; Saul v. Jones 
 (1858), 28 L. J. Q. B. 37. 
 
 («) Hine v. Allely (1833), 4 B: & Ad. 624; cf. Crosse v. Smith 
 (1813), 1 M. & S. at p. 554. 
 
 (t) Buxton v. Jones (1840), 1 M. & Gr. 83. 
 
168 
 
 Bills of Exchange Act, 1882. 
 
 §45. 
 
 Two or more 
 drawees. 
 
 there. This is sufficient. No personal demand on the acceptor 
 is necessary («) . 
 
 6-. A bill is accepted payable at a bank. If the bill is presented 
 to a clerk or agent of the bank at the Clearing House, that is 
 a presentment to the bank and sufficient (a;). 
 
 (6) Where a bill is drawn upon or accepted by- 
 two or more persons who are not partners, 
 and no place of payment is specified, present- 
 ment must be made to them all. 
 
 This is probably declaratory' (y), but the point was not 
 clear. Of course, if one pays, or in refusing payment, 
 acts as the agent of the others, that is enough. 
 
 Drawee or 
 acceptor dead. 
 
 (7) Where the drawee or acceptor of a bill is 
 dead, and no place of payment is specified, 
 presentment must be made to a personal 
 representative, if such there be, and with the 
 exercise of reasonable diligence he can be 
 found. 
 
 This is declaratory (2). Compare sect. 41 (2) (a), as to 
 presentment for acceptance, where different considerations 
 apply, and a different rule is accordingly laid down. 
 
 («) Bailey v. Porter (1845), 14 M. & W. 44. 
 
 (x) Reynolds v. Chettle (1811), 2 Camp. 595; Harris v. Parker 
 (1833), 6 Tyr. 370. As to the practice of the Clearing House and the 
 distinction between London and country cheques, see Boddington v. 
 Schlencher (1833), 4 B. & Ad. 752; London Clearing House Rules 
 and Regulations, 1910; and Hart's Law of Banking, pp. 312 — 319, 
 citing Parr's Bank v. Ashby (1898), 14 T. L. R. 563; Paget on 
 Banking, ed. 3, pp. 355 — 358. The average amount of bills and 
 cheques dealt with by the London Clearing House exceeds forty 
 millions a day. 
 
 (y) Union Bank v. Willis (1844), 49 Massachus. R. 504; see Gates 
 v. Beecher (1875), 60 New York R. 518, as to ex-partners; Britt v< 
 Lawson (1878), 22 Hun. R. 123, New York, as to joint and several 
 note; New York Negotiable Instruments Law, § 138; cf. a special 
 provision as to partners and ex- partners in § 137. 
 
 (z) Williamson Executors, 10th ed. p. 1607; cf. Count v. Thompson 
 (1849), 7 C. B. 400; French Code, Art. 163; New York Negotiable 
 Instruments Law, § 136. 
 
Presentment for Payment. 169 
 
 (8) Where authorized by agreement or usage § 45. 
 a presentment' through the post office is Post office. 
 sufficient. 
 
 This gives effect to a recognised 1 practice in England 
 and the United States (a). 
 
 The sufficiency of a presentment depends on whether Irregular 
 reasonable diligence has been exercised or not. In presentment. 
 America the rule is the same as in England, though 
 perhaps it is rather more laxly applied. See the authorities 
 collected in the note to Berg v. Abbott (b). It has been 
 held in America that if the payor has a known residence a 
 presentment to him in the street is insufficient, unless he 
 waive the irregularity and refuse payment on some other 
 .ground (c) . It has also been held that where no place of 
 payment is specified in a note all the parties may orally 
 agree upon a place, and 1 that a presentment there is 
 sufficient to charge the indbrser (d) . If the payor cannot 
 be found the question is whether due diligence has been 
 used in the endeavour to find him and make presentment. 
 See sect. 46 (2).' Most of the foreign codes contain ex- 
 plicit provisions as to what is to be done in that case (e). 
 
 46. (1) Delay in making presentment for pay- Excuses for 
 ment is excused when the delay is caused by presentment" 
 •circumstances beyond the control of the holder, for P a y m ent. 
 and not imputable to his default, misconduct, or 
 negligence. When the cause of delay ceases to 
 operate presentment must be made with reason- 
 able diligence (/). 
 
 (o) See Heywood v. Pickering (1874), L. R. 9 Q. B. 428, at p. 432; 
 Prideaux v. Griddle (1869), L. R. 4 Q. B. at p. 461; Windham Sank 
 v. Morton (1852), 22 Connecticut R. 214; Paget on Banking, ed. 2, 
 _p. 291. 
 
 (6) Berg v. Abbott (1877), 24 Amer. R. 158. 
 
 (c) King v. Holmes (1849), 11 Pennsylv. R. 456. 
 
 (d) Meyer v. Hibsher (1872), 47 New York R. 265. 
 
 (e) See, e.g., German Exchange Law, Art. 91; Netherlands Code, 
 Art. 180. 
 
 (/) Pothier, No. 144; Nouguier, §§ 1107, 1108; Story, § 327; of. 
 Mothschild v. Carrie (1841), 1 Q. B. at p. 47; New York Negotiable 
 instruments Law, § 141. 
 
170 
 
 Bills of Exchange Act, 1882. 
 
 §46. 
 
 Excuses for 
 non-present- 
 ment for 
 payment. 
 
 Illustrations. 
 
 1. The holder of a bill dies suddenly just before it matures- 
 The circumstances may be such as to excuse delay {g) . 
 
 2. Bill drawn in England, payable in Leghorn. Atthe time 
 the bill matures Leghorn is besieged. The holder is not in 
 Leghorn. This excuses delay (A). 
 
 3. Bill presented for payment through the post (see 
 sect. 45 (8)). It is sent off in time to reach the drawee on the- 
 day of maturity, but by mistake of the post-office is delayed some 
 "days. The delay is (probably) excused (i). 
 
 4. Bill drawn in England, payable in Paris. By a French 
 moratory law, passed in consequence of war, the maturity of bills 
 payable .in Paris is postponed three months. The delay in making- 
 presentment is excused (h). 
 
 The cases do not clearly distinguish between excuses for 
 non-presentment and' excuses for delay in presentment, but 
 when the question is one of reasonable diligence the dis- 
 tinction is an important on© (I) . If presentment is delayed 
 at the request of the drawer or indorser sought to be 
 charged, the delay is presumably excused (m). 
 
 (2) 
 with,- 
 
 Presentment for payment is dispensed 
 
 (a) Where, after the exercise of reasonable 
 diligence presentment, as required by this 
 Act, cannot be effected. 
 
 The fact that the holder has reason to believe- 
 that the bill will, on presentment, be dis- 
 honoured, does not dispense with the neces- 
 sity for presentment. 
 
 (b) Where the drawee is a fictitious person (w). 
 
 (17) Williams on Executors, 10th ed. p. 1533, n. 
 
 (A) Patience v. Tovmley (1805), 2 Smith, 223. 
 
 (i) Windham Bank v. Morton (1852), 22 Connecticut B. 214; Pier 
 v. Meinrichschoffer (1877), 29 Amer. K. 501 ; cf . sect. 49 (15), post. 
 
 (Jo) Rouquette v. Overmann (1875), L. R. 10 Q. B. 525; AeFrancTte- 
 and Rasch, (1918) 1 Ch. 470 (German Moratory Law). 
 
 (T) Cf. Allen v. Edmundson (1848), 2 Exch. at p. 724, notice of 
 dishonour. 
 
 (m) Lord Ward v. Oxford Railway Co. (1852), 2 De G. M. & G~ 
 750. 
 
 (n) Smith v. Bellamy (1817), 2 Stark. 223; New York Negotiable- 
 Instruments Law, § 142. 
 
Presentment for Payment. 171 
 
 Illustrations. § 46. 
 
 _ 1. Bill drawn on B. is accepted by an agent. At the time the 
 bill matures B. is abroad. This is no excuse, presentment should 
 be made to the agent (o). 
 
 2. B. makes a note "Payable at Guildford." B. has no resi- 
 dence there. The bill is presented at two banks, and then treated 
 as dishonoured. This is sufficient (p). 
 
 3. The drawer of a bill orders the acceptor not to pay it. The 
 holder hears of this. Presentment is not dispensed with (q). 
 
 4. The acceptor of a bill informs the holder that he cannot, or 
 will not, pay it when due. Presentment is not dispensed with (r) . 
 
 5. The acceptor of a bill becomes bankrupt before it matures. 
 Presentment is not excused (s) . 
 
 6. B. makes a note payable at " 1, X. Street, London." Before 
 it becomes due he becomes insolvent and absconds. Present- 
 ment at 1, X. Street, is not dispensed with(i). 
 
 This sub-section is declaratory (w) . In some American 
 States there is a tendency to dispense with the attempt to 
 make presentment when such attempt would be futile (x) . 
 This tendency is of doubtful expediency, and finds no 
 favour in England. Compare sect. 45 (5), and sect. 50 (2), 
 and notes thereto. 
 
 As to delay in presentment for payment of bills payable 
 outside the British Islands, where the delay is due to cir- 
 cumstances arising out of the war, see sects. 1 and 3 of 
 the Bills of Exchange Act, 1914 (4 & 5 Geo. 5, c. 82), 
 post, p. 413. 
 
 The fact that the drawee is a person not having capacity 
 to contract does not excuse presentment for payment, 
 unless the case falls within the next clause, though it does 
 excuse presentment for acceptance: see sect. 41 (2), ante. 
 
 (o) Philips v. Astling (1809), 2 Taunt. 206. 
 
 (p) Hardy v. Woodroofe (1818), 2 Stark. 319. 
 
 \q) Bill v. Heap (1823), D. & R. N. P. C. 57; of. Nicholson v. 
 Gouthit (1796), 2 H. Bl. 609. 
 
 (r) Baker v. Birch (1811), 3 Camp. 107; Ex parte Bignold (1836), 
 1 Deac. 712. 
 
 (s) Esdaile v. Sowerby (1809), 11 East, at p. 117; Bowes v. Howe 
 (1813), 5 Taunt. 30, Ex. Ch.; Pothier, No. 147. Aliter as to pre- 
 sentment for acceptance, see sect. 41 (2), ante. 
 
 it) Sands v. Clarke (1849), 19 L. J. O. P. 84; Pierce v. Cate (1853), 
 66 Massachus. R. 190. 
 
 (u) Cf. Pothier, Nos. 144—147; Be East of England Banking Co. 
 (1868), L. R. 4 Oh. at p. 18; New York Negotiable Instruments Law, 
 § 142. 
 
 (x) See, e.g., Foster v. Julien (1861), 24 New York R. 28. 
 
172 Bills op Exchange Act, 1882. 
 
 §46 . ( c ) As regards the dr-awer, where the drawee 
 
 or acceptor is not bound, as between himself 
 
 , and the drawer, to accept or pay the bill, and 
 the drawer has no reason to believe that the 
 bill would be paid if presented (y). 
 
 (d) As regards an indorser, where the bill was 
 accepted or made for the accommodation of 
 that indorser, and he has no reason to expect 
 that the bill would be paid if presented (s). 
 
 Illustrations. 
 
 1. Bill payable to drawer's order is accepted and indorsed to 
 accommodate the drawer. The drawer discounts it, but does not 
 provide the acceptor with funds to meet it at maturity. Present- 
 ment is not necessary to charge the vdrawer (a), but is necessary 
 to charge the accommodation indorser (6). 
 
 2. A cheque is drawn on the Union Bank, the drawer not hav- 
 ing 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 (c). 
 
 Compare sect. 50 (2) (c) and (d), post, and notes 
 thereto; also Pothier, No. 157 
 
 Waiver. (e) By waiver of presentment, express or 
 
 implied (d). 
 
 Compare sect. 50 (2) (b), post, as to notice of dishonour. 
 The waiver may be either before or after the time for 
 presentment. As to express stipulation in the hill waiving 
 presentment, see sect. 16 (2), ante: Waiver of notice of 
 
 (y) Cf. New York Negotiable Instruments Law, § 139. 
 (a) New York Negotiable Instruments Law, § 140. 
 («!) Terry v. Parker (1837), 6 A. & E. 502. 
 
 (6) Saul v. Jones (1858), 28 L. J. Q. B. 37; of. Turner v. Samson 
 (1876), 2 Q. B. D. 23, C. A. 
 
 (c) Wirth v. Austin (1875), L. K. 10 C. P. 689; cf. Re Bethell 
 (1887), W. N. p. 17. 
 
 (d) Bopley v. Dufresne (1812), 15 East, 275; cf. Ex parte Sigmoid 
 (1836), I Deac. at p. 737 ; Sheldon v. Morton (1870), 43 New York E. 
 93; New York Negotiable Instruments Law, § 142, and cases cited in 
 Crawford's edition. 
 
Dishonour by Non-Payment. 173 
 
 dishonour does not of itself include a waiver of present- § 46. 
 ment for payment (e). 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. 51 (6) '(b), post, as to protest of bill 
 previously dishonoured by non-acceptance. 
 
 47. (1) A bill is dishonoured by non-payment Dishonour by 
 
 (a) when it is duly presented for payment and non -P a y ment - 
 payment is refused or cannot be obtained, or 
 
 (b) 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 
 immediate right of recourse against the drawer 
 and indorser accrues to the holder. 
 
 Illustration. / 
 
 An accepted bill is presented for payment and dishonoured. 
 The holder can at once give notice of dishonour to the drawer 
 and indorsers, but he cannot commence an action against the 
 acceptor till the next day(g>). 
 
 This is declaratory (h) . . 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 (i) ; and in 
 
 (e) Hill v. Heap (1823), D. & E. N. P. C. 57. So held also in 
 Louisiana, Wilkins v. Davjes (1862), 20 La. An. 538; aliter, in New- 
 York, Caddington v. Davis (1848), 1 New York E. 187. 
 
 (/) See sects. 65 — 68, acceptance and payment for honour. 
 
 (g) Kennedy v. Thomas, (1894) 2 Q. B. 759, C. A.; cf. Gelmini 
 v.Moriggia, (1913) 2 K. B. 549, at p. 552 (Statute of Limitations). 
 The law in the United States appears to be the same. 
 
 (h) Ex parte Moline (1812), 1 Eose, 303; Siggers v. Lewis (1834), 
 1 C. M. & E. 370; New York Negotiable Instruments Law, §§ 143, 
 144. 
 
 (j) Castrique v. Bernabo (1844), 6 Q. B. 498; see note on Statute 
 of Limitations, post, p. 336. 
 
174 
 
 Bills of Exchange Act, 1882. 
 
 § 47. 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 (ft) . 
 
 Presentment 
 to charge 
 stranger. 
 
 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 (I) . 
 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, it seems, 
 discharged by the holder's omission to present it for 
 payment (m). The same diligence is not requisite in this 
 case as is necessary to charge a party to the instrument. 
 It is sufficient that the holder does what is reasonable to 
 obtain payment (n). 
 
 Notice of dis- 
 honour and 
 effect of non- 
 notice. 
 
 48. Subject to the provisions of this Act(o), 
 when a *bill has been dishonoured by non- 
 acceptance or by non-payment ( p), notice of dis- 
 honour must be given to the drawer and each 
 indorser, and any drawer or indorser to whom 
 
 (k) Kennedy v. Thomas, (1894) 2 Q. B. 759, C. A. 
 
 (I) Walton v. Mascall (1844), l'3 M. & W. 452; Nouguier, § 1192; 
 cf. Mitchaock y. Rumjrey (1843), 5 M. & Gr. 559; Black v. Ottoman- 
 Bank (1862), 15 Moore, P. C. 472, 484; Carter v. White (1883). 25 
 Ch. D. 666, C. A. 
 
 (m) Anderton v. Beck (1812), 16 East, 248; Ropkins v. Ware 
 (1869), L. E. 4 Ex. 268; cf. Straker v. Graham (1839), 4 M. & W. 
 721, presentment for acceptance. Qu. whether this is an absolute 
 rule, or whether the defendant must show that he has been prejudiced 
 by the omission? 
 
 (») Sands v. Clarke (1849), 8 O. B. at p. 761, Maule, J.; Smith. 
 v. A'. S. Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461—463:, 
 Mellish, L.J. See, e.g., Mobson v. Oliver (1847), 10 Q. B. 704, at 
 p. 717. 
 
 (o) See sect. 50, excuses for non-notice and delay. 
 
 Qp) Cf . sects. 43 and 47, defining dishonour by non-acceptance and 
 non-payment. 
 
Notice of Dishonour. 175 
 
 such notice is not given is discharged (q) ; Pro- § 48. 
 vided that — 
 
 (1) Where a bill is dishonoured by non-accept- 
 ness, and notice of dishonour is not given, the 
 rights of a holder in due course (r) subsequent to 
 the omission, shall not be prejudiced by the 
 omission (s). 
 
 (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 (t). 
 
 Illustration. 
 
 A bill bearing indorsement is dishonoured, and the holder 
 gives notice of dishonour to the indorser but not to the drawer. 
 If 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 (it) . 
 
 " Notice of dishonour " means notification of dis- 
 honour, i.e., formal notice (x). The fact that the drawer 
 or indorser of a bill knows that it has been dishonoured 
 does not dispense with the necessity of giving him 
 notice of dishonour (y). Pothier (No. 147), speaking of 
 protests, lays down a similar rule: "la raison est que 
 
 (?) Berridge v. Fitzgerald (1869), L. R. 4 Q. B. at p. 642. New 
 York Negotiable Instruments Law, § 160. 
 
 (r) See sect. 29, denning holder in due course. 
 
 (s) Moscow v. Hardy (1810), 12 Bast, 434; Dunn v. O'Xeeffe 
 (1816), 5 M. & S. 282. New York Negotiable Instruments Law, 
 § 188. 
 
 (p New York Negotiable Instruments Law, § 187; Campbell v. 
 French (1795), 6 T. R. 200. 
 
 («) Cf. Rickford v. Ridge (1810), 2 Oamp. at p. 538; Miers v. 
 Brown (1843), 11 M. & W. 372; sect. 49 (3), (4), post. 
 
 (x) Burgh v. Legge (1839), 5 M. & W. at p. 422, Alderson, B.; 
 Carter v. Flower (1847), 16 M. & W. at p. 749, Parke, B.; cf. Me 
 Fenwich, Stobart $ Co., (1902) 1 Ch. 507. 
 
 («) Miers v. Brown (1843), 11 M. & W. 372; East v. Smith (1847), 
 16 L. J. Q. B. 292; cf. Count v. Thompson (1849), 18 L. J. O. P. 125. 
 
176 
 
 Bills of Exchange Act, 1882. 
 
 § 48. les formalites etablies par les lois pour donner a 
 quelqu'un la connaissance de quelque fait, ne se 
 suppleent point, et ne s'accomplissent pas par equi- 
 pollenbe." As regards notes and inland bills, notice of 
 dishonour is the English substitute for protest (z) . As 
 , regards foreign bills notice of dishonour is supplementary 
 to protest (a) . Under the continental codes notice of pro- 
 test must be given within fixed limits of tim'e(&). 
 
 Rules as to 
 notice of 
 dishonour. 
 
 By whom to 
 be given. 
 
 49. Notice of dishonour in order to be valid 
 and effectual must be given in accordance with 
 the following rules (c) : — 
 
 (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 (d). 
 
 (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 (e). 
 
 Illustrations. 
 
 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 bill has been dishonoured. This is not sufficient; C. 
 is discharged (/) . 
 
 (s) Solarte v. Palmer (1833), 7 Bing. at p. 533. 
 
 (a) Mx ■parte Lowenthal (1871), L. R. 9 Ch. 591. The notice is 
 not bad because it does not state that the bill has been protested. 
 
 (6) Cf. French Code, Arte. 166—170; German Exchange Law, 
 Arte. 45—47. 
 
 (e) The fifteen rules which follow are declaratory, except that 
 rules 5 and 6 somewhat modify the stringency of the common law. 
 Cf. Biekerdike v. Bollman, 1 Smith, Lead. Cas. 11th ed. and notes 
 thereto. 
 
 (d) See Chapman v. Keane (1835), 3 A. & E. 193; Story, § 304; 
 cf. Harrison v. Suscoe (1846), 15 M. & W. at pp. 234, 236; cf. New 
 York Negotiable Instruments Law, § 161. 
 
 (e) Cf. Harrison v. EuscOe (1846), 15 M. & W. at p. 235; New 
 York Negotiable Instruments Law, § 162. 
 
 '(/> Stewart v. Kennett (1809), 2 Camp. 177; cf. East v. Smith 
 (1847), 16 L. 3. Q. B. 292. 
 
Notice of Dishonour. 177 
 
 1: 0. is the first. ind6rser of a dishonoured bill held by;D: D. R 49 
 
 gives notice to 0. one day late. 0., on the same day, gives, notice 
 
 to the draper; thus, as it were, making up lor the lost day. This 
 notice is ineffectual; for 0., having been discharged by the 
 holder's delay, is a mere stranger (g) . 
 
 3. A bill indorsed by 0: is held by D. D.'s attorney gives 
 notice of dishonour to the drawer, but by mistake gives it in 0.'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 (h). 
 
 4. G., the indorser of a bill, holds it as agent' for the indorsee. 
 C. presents it for payment, and it is dishonoured. Notice of 
 dishonour given by 0, in his own name is sufficient (*), 
 
 A party entitled to give notice may constitute ' the 
 drawee or acceptor his agent for the purpose of giving 
 notice of dishonour (fc). 
 
 Notice of dishonour may be given bj the party 
 entitled to give it either personally, or by messenger or 
 other agent (I), or through the post-office (to). By sub- 
 sect. (15), post, 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 (n). It lies on the sender to prove that the 
 letter containing the notice was duly addressed and 
 posted (0) . The sufficiency of the direction on the letter 
 is a question of reasonable diligence. If the drawer or 
 indorser has a place of business the notice .should be 
 addressed to him there; if he has riot, then it should be 
 addressed to him at his residence, and the party giving 
 notice is bound to use reasonable diligence to (discover 
 such place of business or residence (p) . When, however, 
 
 O") Turner v. Leech (1821), 4 B, & Aid. 451. 
 
 (£) Harrison v. Ruscoe (1846), 15 M. & W. 231. 
 
 (i) Zysaght v. Bryant (18S0), 19 L. J. C. P. 160. 
 
 (*) Jtosher y. Kieran (1814), 4 Camp. 87, as modified by Harrison 
 v. Ruscoe (1846), 15 M. & W. at p. 235; cf. Bailey v. Boderifeam 
 (1864), 33, L. J. C. P. at p. 255, Erie, J.; see Stanton v. Blossarh 
 (1817), 14 Massachus. E. 116, where drawee had no authority,- and 
 notice was held bad. 
 
 (T) Cf. Pearson v. Crallan (1805), 2 Smith, 404, as to messenger's 
 expenses. 
 
 (my Stoeken v. Collin (1841), 7 M. & W. 515. 
 
 (ri) Woodcock v. Houldsworth (1846), 16 M. & W. 124, delay; 
 Mackay v. Judkins (1858), 1 P. & P. 208, loss, Byles, J.; Menwick v. 
 Tighe (I860), 8 W. E. 391, loss. 
 
 (o) Hawkes v. Salter (182'8), 4 Bang. 715; cf. Skilbeok v. Garhett 
 (1845), 7 Q. B. 846". 
 
 (p) Berridge v. Fitzgerald (1869), L. E. 4 Q. B. 639. , . 
 
 C. 12 ' 
 
178 
 
 Bills of Exchange Act, 1882. 
 
 §49. 
 
 For whose 
 benefit notice 
 enures. 
 
 In what 
 manner to 
 he given. 
 
 the bill contains an address it seems that such address is in 
 any case sufficient to charge the party giving that 
 address (q). German Exchange Law, Art. 47, provides 
 that when an indorser does not state his address notice 
 may he 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 dis- 
 honour (r) . If the holder does not promptly get an answer 
 from the drawee, it would be prudent for him at once to 
 give notice of dishonour himself. 
 
 (3) Where the notice is given by or on behalf 
 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 (s). 
 
 (4) Where notice is given by or on behalf of 
 an indorser entitled to give notice as herein- 
 before provided (t), it enures for the benefit of 
 the holder and all indorsers subsequent to 
 the party to whom notice is given (u). 
 
 (5) The notice may be given in writing or by 
 personal communication, and may be given 
 in any terms (as) which sufficiently identify the 
 bill(y), and intimate that the bill has been 
 
 (q) Burmester v. Barron (1852), 17 Q. B. 828; of. Ex parte Balcer 
 (1877), 4 Ch. D. at p. 799, O. A. 
 
 (r) Cf. Bailey v. Bodenham (1864), 33 L. J. O. P. at p. 255; 
 Prideaux v. Criddle, L. R. 4 Q. B. at p. 461; Heywood v. Pickering 
 (1874), L. B. 9 Q. B. 428. 
 
 («) See Stafford v. Gates (1820), 18 Johns. 327, New York; New 
 York Negotiable Instruments Law, § 163. 
 
 (0 See aub-sect. (1), and Turner v. Leech (1821), 4 B. & Aid. 451. 
 
 (u) Chapman v. Keane (1835), 3 A. & E. 193; Lysaght v. Bryant 
 (1850), 19 L. J. C. P. 160; Streeter v. Fort Bank (1866), 34 New 
 York R. 413; New York Negotiable Instruments Law, § 164. 
 
 (a;) Caunt v. Thompson (1849), 18 L. J. O. P. at p. 127; see also 
 sub-seefe (7), post, and note thereto. 
 
 (y) Shelton v. Braithwaile (1841), 7 M. & W. 436; Gates v. Beecher 
 (1875), 60 New York E. at p. 527. 
 
Notice of Dishonour. 179 
 
 dishonoured by non-acceptance or non-pay- § 49. 
 ment (s). 
 
 Illustrations. 
 
 1. "I give notice that a bill, &c. (description), indorsed by yon, 
 lies at 1, X. Street, dishonoured." Sufficient (o). 
 
 2. The holder's clerk wrote to an indorser that " B.'s acceptance 
 due that day was unpaid, and requested his immediate attention 
 to it." Sufficient (6). 
 
 3. "Tour draft which became due yesterday is unpaid. Unless 
 the same is paid immediately I shall take proceedings. Noting 
 5s." Sufficient (c). 
 
 4. The following notice left at the 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 (d). 
 
 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 (e). 
 
 6. Notice to drawer of bill accepted by B. " Yours and B.'s 
 note of hand is now due, and your attention to the same will 
 oblige." Sufficient (/). 
 
 This sub-section originally ended with the words, " and 
 that the party to whom notice is given is held liable.'' 
 These words are struck out in committee. Notices of 
 dishonour are now construed very liberally. In 1834 
 the House of Lords, in Solarte v. Palmer (g), decided that 
 the notice must inform the holder, either in terms or by 
 necessary implication, that the bill had 1 been presented 
 and dishonoured. This inconvenient decision was fre- 
 quently regretted (h), and was eventually got rid of by 
 
 (a) Everard v. Watson (1853), 1 E. & B. at p. 804, per 
 Ld. Campbell; New York Negotiable Instruemnts Law, § 167. The 
 notice need not expressly state that the bill has been presented and 
 dishonoured {Paul v. Joel (1859), 28 1>. J. Ex. 143, nor that it has 
 been protested, if protest be necessary (Ex 'parte Lowenthal (1874), 
 L. E. 9 Ch. 591). 
 
 (a) King v. Biohley (1842), 2 Q. B. 419. , 
 
 (*) Bailey v. Porter (1845), 14 M. & W. 44, notice lost, and 
 secondary evidence given of contents. 
 
 (c) Armstrong v. Christiani (1848), 5 O. B. 687; Everard v. Watson 
 (1853), 1 E. & B. 801. 
 
 (d) Paul v. Joel (1858), 27 L. J. Ex. 380; affirmed (1859), 28 
 L. J. Ex. 143. 
 
 (e) Maxwell v. Brain (1864), 10 L. T. N. S. 301. 
 (/) Bain v. Gregory (1866), 14 L. T. N. S. 601. 
 (g) Solarte v. Palmer. (ISSi), 1 Bing. N. C. 194. 
 
 (A) See, e.g., Everard v. Watson (1853), 1 E. & B. at p. 804. 
 12 (2) 
 
!80 Bills of Exchange Act, 1 1882. 
 
 § 49. considering it merely as a rinding an the particular 
 ' facts (i). Since 1841 (k) 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, c pjs£, p. 383. 
 
 (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 collect- 
 ing bankers which was previously of doubtful validity. 
 
 F orm. (7) A written notice need not be signed (/), 
 
 and an insufficient written notice may be 
 supplemented and validated by verbal com- 
 munication (m). A misdescription of x the bill 
 shall not vitiate the notice unless the party 
 to whom the notice is given is in fact misled 
 i thereby (n). 
 
 Illustrations. 
 
 1. A person sent by the holder goes to the house of the drawer, 
 who js not a trader, and not finding the drawer, informs his wife 
 that he has brought back the bill dishondured. The wife says she 
 will tell her husband. This may be sufficient (o). 
 
 2. The holder's clerk goes to the drawer and tells him that his 
 bill has been presented, and that the acceptor cannot pay it. 
 
 (*') Paul v. Joel (1858), 27 L. J. Ex. at p. 384. 
 
 (£) See Furze v. Sharwood (1841), 2 Q. B. 388, where the notice 
 would now probably be sufficient. 
 
 (I) Maxwell v. Brain (1864), 10 L. T. N. S. 301; but it must 
 come from the right person: see sub-sects. (1) and {2). 
 
 (m) Houlditch v. Gauty (1838), 4 Bing. N. O. 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. 
 
 (») New York Negotiable Instruments Law, § 167, and cases in 
 Crawford's edition. 
 
 (o): Homeyo v. Pownt HR37), 2 M. & W. 348. , ' 
 
Notice op Dishonour. 18J 
 
 The drawer 1 replies that he will see the holder about it. This 8 49 ■ 
 may he sufficient (p) . 
 
 3. A notary's clerk takes the bill, 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 (g). 
 
 4. A notice to the drawer which describes the bill 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 (s), or which trans- 
 poses the names of drawer and acceptor (<), or which describes 
 the acceptor by a wrong name (m), may be sufficient. . 
 
 (8) Where notice of dishonour is required to be To whom 
 given tp any person, it may be given either honoL°murt 
 to the party hiniself, or to his agent in that be ^ ven - 
 behalf (a;).' 
 
 Illustrations. 
 
 1. 0. is the indorser of a bill which is dishonoured. Verbal 
 notice given to his solicitor is not sufficient (y). 
 
 .2. X., who has authority ,to indorse for 0., indorses a bill in O.'s 
 name. Notice of dishonour .given to X. is (perhaps) sufficient (a) . 
 
 3. The drawer of a bill is a non-trader. Verbal notice of dis- 
 honour given to his wife at his house, in his absence, may be 
 sufficient (a) . 
 
 4. The indorser of a bill is a merchant. Notice of dishonour, 
 verbal or written, given ito or left with a clerk at his counting- 
 house is sufficient ( 6 ) . 
 
 5. 0. indorses a bill "In need at Messrs. X. & Go." Notice of 
 dishonour given to X. & Co. is not sufficient to charge 0. (e). 
 
 (jp) Metcalfe v. Richardson (1852), 11 C. B. 1011. 
 
 (?) Viale v. Michael (1874), 30 L. T. N. S. 453. For further 
 illustrations, see East v. Smith (1847), 16 L. J. Q. B.-292; Chard v. 
 Fox (1849), 14 Q. B. 200; Jennings v. Roberts (1855), 24 L. J. 
 Q. B. 102. 
 
 (r) Bromage v. Vaughan (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. 
 
 (0 Mellersh v. Rippen (1852), 7 Exch. 578. 
 
 («) Harpham v. Child (1859), 1 E. & E. 652. 
 
 (%) New York Negotiable Instruments Law, § 168. 
 
 ly) Crosse v. Smith (1813), 1 M. & S. at p. 554. 
 
 («) Cf. Firth v. Thrush (1828), 8 B. & O. at p. 391. , , 
 
 (a) Ilousego v. Cowne (1837), 2 M. & W. 348; cf. Wharton v. 
 Wright (1844), 1 C. k K. 585. 
 
 (6) Allen v. Edmundson (1848), 2 Exch. at p. 724; Viale v. 
 Michael (1874), 30 L. T. N. S. 453. 
 
 (c) Ex parte Prange, Re Leeds Bank (1865), L. E. 1 Eq. at p. 5: 
 
182 Bills of Exchange Act, 1882. 
 
 § 49. It is the duty of the drawer or indorser of a bill, if he 
 
 be absent from his place of business or residence, to see 
 that there is some person there to receive notice on his 
 behalf (d). 
 
 (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 is sufficient («) . The Act appears to affirm this 
 view. 
 
 (10) Where the drawer or indorser is bankrupt, 
 notice may be given either to the party 
 himself or to the trustee (/). 
 
 (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 {g). 
 
 Within what (12) The notice may be given as soon as the 
 
 time notice or v / J ° 
 
 (d) Cf. Allen v. Edmundaon (1848), 2 Exck. at p. 723. 
 ■'(e) Merchants Bank v. Birch (1817), 17 Johns. E. 24; of. New- 
 York Negotiable Instruments Law, § 169, which reproduces sub- 
 sect. (9) and adds, " If there be no personal representative, notice 
 may be sent to the last residence or last place of business of the 
 deceased." 
 
 (/) Cf. New York Negotiable Instruments Law, § 172, which is 
 rather wider. See " bankrupt " defined by sect. 2, ante. 
 
 (j) Cf New York Negotiable Instruments Law, §§ 170, 171. Bill 
 drawn by partners, but dishonoured after dissolution. Notice to one 
 is sufficient, per Channell, J., unreported. 
 
Notice of Dishonour. 183 
 
 bill is dishonoured (A), and must be given § 49. 
 within a reasonable time thereafter (t). dishonour 
 
 must be 
 
 In the absence of special circumstances (k) s iven - 
 notice 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 (I) ; 
 
 (b) where the person giving and the person 
 to receive notice reside in different places, 
 the notice is sent y 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 heretofore, be a mixed question 
 of law and fact(o). By sect. 92, post, when the time 
 allowed for doing any act is less than three days, non- 
 business days are excluded (p) . 
 
 (A) Burbridge v. Manners (1812), 3 Camp. 193; Mine v. Allely 
 (1833), 4 B. & Ad. 624; Kennedy v. Thomas, (1894) 2 Q. B. 759. 
 
 (») Hirschfield v. Smith (1866), L. B. 1 C. P. at p. 351; New- 
 York Negotiable Instruments Law, §§ 173, 174, lay down rather a 
 stricter xule. 
 
 (K) See, e.g., The Mmville, (1904) P. 319 (bill drawn by master of 
 ship and whereabouts- of ship not known). As to a Jewish sacred 
 festival, see lAndo v. Unsworth (1811), 2 Camp. 601. 
 
 (I) Smith v. Mullett (1809), 2 Camp. 208; Hilton v. Fairclough 
 (1811), 2 Camp. 632. 
 
 (ni) Williams v. Smith (1819), 2 B. & Aid. at p. 500. 
 
 \ri) Hawkes v. Salter (1828), 4 Bing. 715; Carter v. Surley (1838), 
 9 New Hamp. E. 558, at p. 570. 
 
 (o) Hirschfield v. Smith (1866), L. E. 1 C. P. at p. 351; cf. 
 Glad-well v. Turner (1870), L. E. 5 Ex. at p. 61. 
 
 (p) Cf. Wright v. Shawcross (1819), cited 2 B. & Aid. at p. 50], 
 as to notice received on a Sunday; and Bank Holidays Act, 1871, 
 s. 2, post, p. 389. 
 
18 * Bills op Exchange Act, 1882. 
 
 § 49. A person who gives notice to a remote party must give 
 
 notice within the same limits of time that would suffice in 
 
 the case of an immediate party (q) . If the holder does 
 not 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 or 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 1 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, 
 and several other continental codes, the holder must send 
 off written notice of protest within two days after protest. 
 
 Agents. ^13) "Where a bill when dishonoured is in the 
 
 hands of an agent, he may either himself 
 give notice to the party 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 inde- 
 pendent holder (r). 
 
 Illustrations. 
 
 1. A bill payable in London is indorsed in blank by the holder, 
 and deposited with a country banker for collection. The country 
 banker's London agent presents it for payment and gives him due 
 
 O) Howe v. Tipper (1853), 22 L. J. C. P. 135; of. Nouguier, 
 §1096. , , 
 
 (r) New York Negotiable Instruments Law, § 165. 
 
Notice of Dishonour. 185 
 
 notice of its dishonour. The country banker on the day after the § 49. 
 
 receipt of such notice gives notice to his customer, who in turn — 
 
 .gives similar notice to his indorser. This indorser has received 
 due notice (s). 
 
 2. C. indorses a bill to the Liverpool branch of the D. Bank. 
 The Liverpool branch sends it to the Manchester branch, and the 
 Manchester branch endorses 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. Bach branch as 
 regards time is to be considered a distinct party (t). 
 
 3. X. pays a bill supra protest for the honour of C, an in- 
 dorser, who resides at Bruges, and the same day posts the bill to 
 C. C. 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 (w). 
 
 4. A bill bearing several indorsements is sent to a branch bank 
 for collection. The branch bank forwards it to a London bank, 
 who on the day that it is dishonoured, give notice by error to 
 another branch of the forwarding bank. Next day, notice is sent 
 to the right branch bank by wire, and the subsequent notices of 
 dishonour are given in due time. The first indorser of the bill 
 •cannot rely on the defence that the first notice of dishonour was 
 out of time (a;). 
 
 (14) Where a party to a bill receives due notice R 6mo te 
 of dishonour, he has after the receipt of such P arties - 
 notice the same period of time for giving 
 notice to antecedent parties that the holder 
 
 has after the dishonour («y). 
 
 (15) Where a notice of dishonour is duly Miscarriage 
 addressed and posted, the sender is deemed ° pos 
 
 to have given due notice of dishonour, not- 
 withstanding any miscarriage by the post 
 office (s). 
 
 (*) Bray v. Hadwen (1816), 5 M. & S. 68; cf. Firth v. Thrush 
 {1828), 8 B. & C. 387. 
 
 y (i) Clode v. Bayley (1843), 12 M. & W. 51, approved Prince v. 
 Oriental Banlc (1878), 3 App. Cas. at p. 332, P. O. 
 
 («) Goodall v. Polhill (1845), 14 L. J. C. P. 146. 
 
 {%) Fielding <$■ Co. v. Corry, (1898) 1 Q. B. 268, C. A. 
 
 \y) See Wright v. Shawcross (1819), cited 2 B. & Aid. at p. 501, 
 jiotice received on Sunday; and see ante, p. 183, and New York 
 ^Negotiable Instruments Law, § 178. 
 
 (z) See note to sub-sect. (2), ante, and cf. New York Negotiable 
 instruments Law, § 177. 
 
186 
 
 Bills of Exchange Act, 1882. 
 
 §50. 
 
 Excuses for 
 delay in 
 
 giving- notice 
 of dishonour. 
 
 50. (1) Delay in giving notice of dishonour is 
 excused where the delay is caused by circum- 
 stances beyond the control of the party giving 
 notice, and not imputable to his default, mis- 
 conduct, or negligence. When the cause of 
 delay ceases to operate the notice must be 
 given with reasonable diligence (a). 
 
 Illustration. 
 
 • Bill drawn by master of shin on his owners is dishonoured on 
 Saturday. The holder's banker who presented the bill informs 
 him of this on Monday. The, holder takes till Thursday in making- 
 inquiries as to where the ship is, and then gives notice to the 
 drawer by registered post. The notice is in time, and the 
 delay caused by making inquiry is excused (6). 
 
 Compare sect. 46 (1) as to delay in presentment for 
 payment, and sect. 51 (9) as to delay in protest. If an 
 indorser gives a wrong address, delay caused by his so 
 doing would be excused (c) ; and if the holder does not 
 know an indorser' s address, delay Occupied in making 
 inquiries would be excused (rf); so, too, by sect. 49 (15) f 
 delay caused by the default of the post office is excused. 
 This sub-section, which is declaratory (e), is an obvious 
 deduction from the general rule that notice of dishonour 
 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 conceived that, though that party is liable, he 
 cannot give an effectual notice to; antecedent parties (g). 
 
 (a) See Firth v. Thrush (1828), 8 B. & C. 387; Gladwell v. Turner 
 (1870), L. E. 5 Ex. at p. 61; and the notice must be given before 
 action; Studdy v. Beesty (1889), 60 L. T. N. S. 647, C. A.; cf. New- 
 York Negotiable Instruments Law, § 184. 
 
 (6) TheElmville, (1904) P. 319. 
 
 (e) Hewitt v. Thompson (1836), 1 M. & Rob. 541; Betridge v. 
 Fitzgerald (1869), L. B. 4 Q. B. 639. 
 
 (d) Baldwin v. Richardson (1823), 1 B. & C. 245. 
 
 (e) Studdy v. Beesty (1889), 60 L. T. N. S. 647; (1889), W. N. 
 p. 14, C. A. 
 
 (ff Allen v. Edmundson (1848), 2 Exch. at p. 723; 
 
 (j7) Cf. Shelton v. Braithwaite (1841), 8 M. & W. at pp. 254, 255. 
 
Notice ok Dishonour. 187 
 
 As to notice to indorser who has indorsed a bill when § 60. 
 overdue, see note to sect. 10 (2), ante. 
 
 (2) Notice of dishonour is dispensed with (A) — When notice 
 (a) When, after the exercise of reasonable dispensed 
 diligence, notice as required by this Act 
 cannot be given to or does not reach the 
 drawer or indorser sought to be charged : 
 
 Illustrations. 
 
 1 . The holder of a dishonoured bill goes to the drawer's place of 
 business during business hours to give him notice of dishonour. 
 He finds the place shut, and no one there of whom to make 
 inquiries. This may excuse notice (i). 
 
 2. The holder of a bill duly addresses and posts a notice of 
 dishonour. It is lost in the post. The drawer or indorser to 
 whom it was sent is not discharged (&) . 
 
 3. The holder of a dishonoured bill docs not know the indorser 's 
 address. He makes some inquiry, but does not take the steps he 
 reasonably might have done (I). The indorser is discharged (to). 
 
 4. A bill 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 (n). 
 
 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 (o). 
 
 The fact that the drawer or indorser sought to be 
 charged has reason to believe that the bill will, on pre- 
 sentment, be dishonoured, does not dispense with the 
 necessity for giving him notice of dishonour (p) . Thus, if 
 
 (h) Comparing this sub-section with the corresponding provisions 
 of sect. 46 (2), it will be seen that notice of dishonour is dispensed 
 with' in several cases when presentment for payment is not. 
 
 (i) Allen v. Edmundson (1848), 2 Exch. at p. 723; discussed 
 Studdy v. Beesty (1889), 60 L. T. N. S. at p. 649, C. A. 
 
 (A) Mackay v. Judkins (1858), 1 F. & E. 208, Bylos, J.; cf. 
 sect. 49 (15), ante. 
 
 (1) Allen v. Edmundson (1848), 2 Exch. at p. 723; discussed 
 Studdy v. Beesty (1889), 60 L. T. N. S. at p. 649, C. A. 
 
 (ni) Beveri&ye v. Burgis (1812), 3 Camp. 262. 
 
 in) Thaekray v. Blackett (*811), 3 Camp. 164. 
 
 (o) Studdy v. Beesty (1889), 60 L. T. N. S. 647, C. A. 
 
 (p) Caret!' v. Duckworth, (1869), L. R. 4 Ex. at p. 319. 
 
with. 
 
 188 Bills of Exchange Act, 1882. 
 
 § : S0. the drawer -or indorser of a bill knows that the acceptor 
 is dead (q) or bankrupt (r),. notice must still be given; so, 
 too, if the drawer or indorser be dead or bankrupt: 
 sect.' .49.(9),, (1.0), ante. Reasonable diligence is a ques- 
 
 '" "' tion of fact (s). 
 
 When notice (b) By waiver express or implied. Notice of 
 dishonour may be waived before the time 
 of giving hdtice has arrived, or after the 
 omission to give due notice (t). 
 
 Illustrations. 
 
 1. The drawer of a bill tells 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 bill. This waives notice (w)_. 
 
 2. The drawer of a bill informs the holder that it will not be 
 paid on presentment. This (probably) waives notice (x) . 
 
 3. The indorser of a bill receives no notice of dishonour. Six 
 weeks. after the dishonour he meets the holder and promises to 
 pay the bill. This is a waiver' of notice (y). 
 
 4. The drawer of a bill indorses it to 0.) who indorses it to 
 D., On the day of dishonour, but before the fact of dishonour 
 could be known, the drawer, knowing the acceptor to be insolvent, 
 says to C, " I suppose I shall have to take up the bill. If you 
 will call with it in a few days I will pay you." D. gives no 
 notice of dishonour either to 0. or the drawer. D. cannot avail 
 himself of the promise to 0., and sue the drawer (z). 
 
 5. The drawer of a bill indorses it to 0., 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 (a). 
 
 i (q) Gaunt y v; Thompson (1849), 18 L. J. O. P. 125; French Code, 
 Art. 163; Pothier, No. 147. 
 
 (r) Esdaile v. Sowerby' (1809), 11 East, 114; cf. French Code, 
 Art. 163. 
 
 (*) Bateman v. Joseph (1810), 2 Camp, at p. 462; cf.' Berridge v. 
 Fitzgerald (1869), L. B, 4 Q. B. at p. 642. 
 
 (€) New York Negotiable Instruments Law, § 180. 
 
 (w) Phipso'n v. Kellner (1815), 4 Camp. 285; cf. Burgh v. Legge 
 (1839), 5 M. .& W. 418. 
 
 (a) Brett v. Levett (1811), 13 East, at p. 214. 
 
 ly) Cordery v. Colville (1863), 32 L. J. C. P. 210. 
 
 (a) Pichin v. Graham (1833), 1 Cr. & M. 725. 
 
 (a) Woods v. Dean (1862), 32 L. J. Q. B. 1. See further, Leeaan 
 v. Kirkman (1859), 6 Jur. N. S. 17; ^forth Stafford Loan Co. v. 
 Wythies (1861), 2.F. & F. 563; Kilby v. Roehussem (1865), 18 C. B. 
 N. S. 357; Sheldon v. Hortmi (1870), 43 New York E. 93; 
 
Notice of Dishonouk. 18,9 
 
 6. Two companies have the same secretary. A bill is drawn by 8 50. 
 one company on the other, and is indorsed to C. The bill is dis- 
 
 honoured by the acceptors, and no notice is given to the drawers. When notice 
 There is no waiver. C. cannot recover on this bill, and the fact °* dishonpur 
 that the secretary know that the bill was going to be dishonoured dispensed 
 is immaterial (6). wlth - 
 
 7. Bill dishonoured, and notice not given to indorser. The 
 indorser makes a payment on account under the mistaken belief 
 that she was a joint acceptor. This is not a waiver of notice (c) . 
 
 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 (d) . 
 
 Waiver of notice of dishonour by an indorser does not 
 affect parties prior to such indorser (e). 
 
 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 indorser 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 present- 
 ment for payment (gr) . 
 
 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 (h) . In America it has been 
 
 (6) Be Femoich, Stobrirt # Co., (1902) 1 Oh. 507; aliter, if. it was 
 the secretary's duty to give notice. 
 
 (e) McTavish v. Michael's Trustees (1912), S. C. 425,- Court of 
 Session. 
 
 (d) Rabey v. Gilbert (1861), 30 L. J. Ex. 170. 
 
 (e) Turnery. Leech (1821), 4 B. & Aid. 4S1; cf. New York Negoti- 
 able Instruments Law, § 181, as to construction of express waivers. , 
 
 (/) Goodall v. Dolley (1787), 1 T. R. 712; cf. Piclcin y. Graham 
 (1833), 1 Cr. & M. at p. 729. 
 
 (ff) Keith v.. Burke (1885), 1 C. & E. 551. 
 
 (A) As to what is evidence of due notice, see Taylor v. Jones (1809), 
 2 Camp. 105; Sicks v. Beaufort (1838), 4 Bing. N. C. 229; Brownell 
 v. Bonney (1841), 1 Q. B. 39; Curlewu v. Oorficld (1841), 1 Q.'B. 
 814; Campbell v. Webster (1845), 15 L. J. O. P. 4; Mills v. Gibson 
 (1847), 16 L. J. C. P. 249; Jackson v. Collins (1848), 17 L. .T. Q. B. 
 142; Bartholomew v. Hill (1862), 5 L. T. N. S. 756. As to what 
 is jnot, Bonvdaile v. Lome (1811), 4 Taunt. 93; Braithwaife) v. 
 Coleman (1835), 4 N. & M. 654; Bell v. Fr(inHs. (1842), 4. 5^;fcCV 
 446; Holmes v. Staines (1850), 3 C. & K. 19, .- 5 y, , , .,; y,<, (,,,) 
 
190 Bills of Exchange Act, 1882. 
 
 § 60. held- that a verbal waiver of notice may be revoked before 
 
 Whennotice tno ^ me ^ or gi y i n g notice has expired («) . 
 
 of dishonour As to the insertion of an express stipulation in a bill 
 
 dispensed waiving notice, see sect. 16 (2), ante. 
 
 A*, regards ( c ) As regards the drawer in the following 
 
 cases, namely — (1) where drawer and drawee 
 are the same person (A), (2) where the drawee 
 is a fictitious person, or a person not having 
 capacity to contract {I), (3) where the drawer 
 is the person to whom the bill is presented 
 for payment (m), (4) where the drawee or 
 acceptor is as between himself and the 
 drawer under no obligation to accept or pay 
 the bill (re), (5) where the drawer has counter- 
 manded payment (o) : 
 
 Illustrations. 
 
 1. Bill" is made payable at the drawer's own house. It ia 
 accepted and dishonoured. Prima facie this is a bill accepted 
 for the accommodation of the drawer, and he is not entitled to 
 notice (p). 
 
 2. A bill is signed by the drawer in order to accommodate the 
 acceptor. The drawer is entitled to notice (q). 
 
 3. A. having the balance of 102. at his bankers, and having no 
 
 (i) Second Nat. Bank v. Maguire (1877), 31 Amer. R. 539. 
 
 (k) See " person " defined by sect. 2, ante, and see sect. 6 (2), ante. 
 Qu. as to case of two firms having a common partner, see New York 
 Contracting Co. v. Selma Savings Bank (1874), 23 Amer. R. 552. 
 
 (1) See Leach v. Hewitt (1813), 4 Taunt. 731; Smith v. Bellamy 
 (1817), 2 Stark. 223, and sect. 5 (2), ante. 
 
 (m) See " person " defined by sect. 2, ante, and see sect. 5 (2), ante. 
 Qu. 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), 18 L. J. O. P. 125. 
 
 (») See Bickerdike v. Bollman (1786), 2 Smith, L. C. 11th ed. 
 p. 102, and notes; Sickens v. Beal (1836), 10 Peters, 572, Sup. Ct. 
 N. S. 
 
 (o) Cf. New York Negotiable Instruments Law, § 185. 
 
 \p\ Sharp v. Bailey (1829), 9 B. & C. 44; cf. Carter >. Flower 
 (1847), 16 M. & W. 743. 
 
 (g) Sleigh v. Sleigh (1850), 5 Exch. 514. 
 
Notice of Dishonour. 191 
 
 authority to overdraw, draws a cheque for 507. A. is not entitled § 50. 
 to notice (r). - — 
 
 4. A bill is drawn and accepted to accommodate X. who is not a When notio* 
 party to it, but who is to provide for it. The drawer is entitled fi^^ UT 
 to notice of dishonour (s). wit j, 
 
 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 
 indorser are entitled to notice (w) . 
 
 7. A. supplies goods to B. on six months' credit, and then 
 proceeds to draw a bill on him payable two months after date. 
 If B. refuses to accept, A. is not entitled to notice (as). 
 
 Prima facie the acceptor is, as between himself and 
 the drawer, the person hound to pay it; hut evidence is 
 admissible to show that he is in reality a mere surety for 
 the drawer, or some other party (y). 
 
 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 present- 
 ment." These latter words were struck out in committee. 
 Therefore the cases in which, before the Act, notice was 
 .held necessary on this ground, must be reconsidered with 
 reference to this amendment. 
 
 (d) As regards the indorser in the following a 8 regards 
 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, 
 
 (r) Carew v. Duckworth (1869), L. E. 4 Ex. 313; cf. Wirth v. 
 Austin (1875), L. R. 10 C. P. 689. 
 
 (s) Lafitte v. Slatter (1830), 6 Bing. 623; cf. Turner v. Samson 
 (1876), 2 Q. B. D. 23, C. A. 
 
 («) Thaekray v. Blaokett (1811), 3 Camp. 164. Qu. since the Act? 
 
 (u) Foster v. Parker (1876), 2 C. P. D. 18; cf. Maltass v. Sidle 
 <1859), 28 L. J. C. P. 257. 
 
 (a;) Claridge v. Dalton (1815), 4 M. & S. 226. 
 
 (y) Cook v. Lister (1863), 32 L. J. O. P. at p. 127. 
 
198 
 
 Bills of Exchange Act, 1882. 
 
 §50. 
 
 When notice 
 of dishonour 
 dispensed 
 with.. 
 
 Notice to 
 
 acceptor 
 
 unnecessary. 
 
 Guarantor. 
 
 (3) where the bill was accepted or made for 
 his accommodation (z). 
 
 Illustration. 
 
 The indorser of a bill becomes the executor of the acceptor. , It 
 is presented: to him and he dishonours it. He is not entitled to 
 notice (a). 
 
 See " person " defined by sect. 2, ante, 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 vsill be honoured on presentment ." The 
 latter words were struck out in committee. 
 
 When a bill is dishonoured which is void for want of 
 being duly staimped, notice of dishonour need not be given,, 
 for the holder's only remedy is in an action on the con- 
 sideration, and riot on the instrument itself (&). 
 
 Notice' to charge Acceptor, Maker, or Stranger. 
 
 By sect. 52 (3), post, the acceptor of a bill of exchange, 
 or maker of a note, is not in any case entitled to notice of 
 dishonour (c) . 
 
 A persdn who has given a guarantee for the payment of 
 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 (d). 
 
 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 (e) . 
 
 3. X. gives a guarantee for the price of goods to be 
 supplied to the drawer of a bill. X. is entitled to notioe 
 of dishonour (/) . 
 
 (z) New York Negotiable Instruments Law, § 186. 
 
 (a) Gaunt v. Thompson (1849), 18 L. J. O. P. 125. 
 
 (b) Cundy v. Marriott (1831), 1 B. & Ad. 696. 
 
 (e) Cf. Some v. Tipper (1853), 22 L. J. O. P. at pi. 137; Pearse v). 
 Pemberthy (1812), 3' Camp. 261, maker of promissory note. i 
 
 (rO Murray v. King (1821), 5 B. & Aid. 165. 
 
 (e) Holbrow v. WilUm (1822), 1 B. & C. 10. 
 
 (/) Philips v. Astling (1809), 2 Taunt. 206; cf; Hitcheoelc v. 
 Kumfrey (1843), 5 M. & Gr. at p. 564. 
 
Notice of Dishonour. 193 
 
 f ' ?" § uarantees the payment of a not© " if it bo not § 50 
 
 duly honoured and paid " by the maker. X. is not entitled ~ ' — 
 
 to notice of dishonour (g). 
 
 5. A debtor gave his creditor a bill aooepted by him- 
 self, 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 (h). 
 
 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 Person liable 
 on the consideration for which it is given, is (probably) °. n consideia- 
 entitled to notice of dishonour, if he is prejudiced by not tl0n ' 
 getting notice. 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 because it has not been promptly pre- 
 sented for acceptance, and the drawer has in the meantime 
 failed, X. (probably) is not liable for the price of the 
 goods, unless he receives notice of dishonour (k). 
 
 2. C, the holder of a country bank note, transfers it 
 to D., without indorsing it, to pay for goods supplied by 
 D . If the bank fails, C . is not liable for the price of the 
 goods, unless he received notice of dishonour (I) . 
 
 It seems from the last-cited cases (I) that the same strict 
 and technical notice of dishonour is not requisite to charge 
 a person liable on the consideration as is requisite to 
 
 O) Walton v. Mmcall (1844), 13 M. & W. 72; see ibid, at p. 452. 
 
 (A) Carter v. White (1883), 25 Oh. D. 666, C. A. 
 
 (i) See, e.g., Broian v. Curtis (1849), 2 New York E. 225; contra, 
 Foote v. Brown (1841), 2 MoClean, 369. 
 
 (K) Smith v. Mercer (1867), L. It. 3 Ex. 51; contra, Swiriyard v. 
 Bowes (1816), 5 M. & S. 62, not cited. 
 
 (0 Camidge v. Allenby (1827), 6 B. & O. 373; Turner v. Stones 
 (1843), ID. SL. 122; Bobson v. Oliver (1847), 10 Q. B. 704, oases 
 on country bank notes; cf. sect. &8, post. When a man takes a country 
 bank note as payment for a debt, it may perhaps be inferred on very 
 slight evidence that he has taken it as absolute, and not as conditional, 
 payment. 
 
 c. 13 ' 
 
194 Bills op Exchange Act, 1882. 
 
 § 50. 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 (m). 
 
 Noting inland 51. (1) Where an inland bill has been dis- 
 m honoured it may, if the holder think fit, be noted 
 
 for non-acceptance or non-payment, as the case 
 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. See 
 sect. 93, post. 
 
 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," "no effects," or "office 
 closed." 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 (o). 
 
 By sect. 73 this provision applies to cheques, and by 
 sect. 89 to promissory notes. By sect. 57 the expenses of 
 noting can be recovered as liquidated damages. 
 
 This Act attaches no legal consequences to noting, an 
 inland bill (p), except by making it a necessary pre- 
 
 (m) Cf. <Camidge v. Allenby (1827), 6 B. & C. at p. 381. 
 
 (») Cf . New York Negotiable Instruments Law, § 189. , 
 
 (o) Brooks' Notary, 6th ed. p. 82. , The fee in the City charged 
 by London notaries is Is. 6d., outside the City according to distance: 
 Ibid., p . 407 ; and evidence before Select Committee on Bank Holidays 
 Bill, 1868, see at pp. 51—53. 
 
 (p) Gi r ,Chesmer v. Noyes (1815), 4 Camp. 129 (noting or protest 
 of bill in England no evidence of due presentment) ; cf . Nye v. 
 
Protest. 195 
 
 liminary to acceptance or payment for honour: see sects. § 61. 
 
 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. 331. 
 
 (2) Where a foreign bill, appearing on the Protest of 
 face of it to be such, has been dishonoured ? by foreignbm - 
 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 
 protested the drawer and indorsers are dis- 
 charged (q). Where a bill does not appear on the 
 face of it to be a foreign bill, protest thereof in 
 case of dishonour is unnecessary (?•). 
 
 See ',' foreign bill," denned by. sect. 4. By sect. 89 (4), 
 post, protest of a foreign note is unnecessary for English ' 
 purposes. As to protest for purposes of summary dili- 
 gence in Scotland, see note to sect. 98, post. 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 (s), though it should 
 state it. As to notice of protest under the foreign codes, 
 see note to sect. 49 (12), ante. 
 
 The protest of a bill in England does not prove due 
 presentment (t), aliter it seems when the bill is protested 
 abroad, for there it is a judicial act (u). 
 
 Macdonald (1870), L. R. 3 P. C. 331, at p. 343 (notarial certificate 
 of execution of deed). 
 
 (q) Gale v. Walsh (1793), 5 T. R. 239; of. Whitehead v. Walher 
 {1842), 9 M. & W. 506. 
 
 (r) Cf. New York Negotiable Instruments Law, § 260. 
 
 (,?) Ex parte Lowenthal (1874), L. R. 9 Ch. 591, and sen ante, 
 p. 176. 
 
 (t) Ckesmer v. Noyes (1815), 4 Camp. 129. 
 
 {u) Brain v. Preece (1843), 11 M. & W. at p. 775;' cf. Poole v. 
 Meets (1835), 1 Bing. N. C. 649; Daniel, ed. 5, § 968.' 
 
 13(2) 
 
196 
 
 Bills of Exchange Act, 1882. 
 
 §61. 
 
 For non- 
 payment 
 after non- 
 acceptance. 
 
 (3) A bill which has been protested for non- 
 acceptance may be subsequently protested for 
 non-payment (%). 
 
 Protest in such case might be 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 (Tnited Kingdom, though by the oomity 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 (mite, p. 161), 
 under most 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 
 bill at maturity. 
 
 Time of (4) Subject to the provisions of this Act(y), 
 
 [7 & 8 Geo. 5, when a bill is noted or protested [it may be 
 °" 48 "-' noted on the day of its dishonour, and must be 
 
 noted not later than the next succeeding business 
 day]. When a bill has been duly noted, the 
 protest may be subsequently extended as of the 
 date of the noting (s). 
 
 For the provisions referred to, see sub-sect. (6) (a), and 
 sub-sect. (9). The provisions of this sub-section as to the 
 extension of the protest are supplemented by sect. 93,. 
 post. 
 
 By sect. 1 of the Bills of Exchange (Time of Noting) 
 Act, 1917 (7 & 8 Geo. 5, c. 48), post,, p. '414, the worBis in 
 square brackets were substituted for the words " it must 
 be noted on the day of its dishonour . ' ' The Act was passed! 
 to relieve notaries who were in difficulties owing to the 
 depletion of their staff during the war; but the change 
 was advocated before the war by the British delegates to. 
 the Hague Conferences on Negotiable Instruments. By 
 
 (%) New York Negotiable Instruments Law, § 265. 
 
 (y) See sub-sect. 9 of this section, post. 
 
 (z) New York Negotiable Instruments Law, § 263. 
 
Protest. 197 
 
 French Code, Art. 162, a bill is to be protested for non- § 51. 
 
 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 1 
 later than the second day after. See the laws of different 
 nations on the point collected: Nouguier, § 1270. 
 
 (5) Where the acceptor of a bill becomes bank- Protest for 
 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 (a). 
 
 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 (6) . English law 
 provides no .such remedy, and the only effect of such a 
 protest in England is that the bill may be accepted for 
 honour. In France, if the acceptor fails, the bill may at 
 onco be treated as dishonoured and protested for non- 
 payment (c). As to inhibition and arrestment in Scot- 
 land when the acceptor is vercpms ad inopiam, see Thor- 
 burn's Bills of Exchange Act, p. 124. 
 
 (6) A bill must be protested at the place where Place of 
 it is dishonoured (d ). 
 
 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 
 returned and on the day of its return if 
 
 («) See Brooks' Notary, 6th ed. p. 86, and forms, p. 171; cf. New 
 York Negotiable Instruments Law, § 266. 
 
 (b) See, e.g., German Exchange Law, Art. 29; Netherlands Code, 
 Arts. 177, 178. 
 
 (c) French Code, Art. 163; Nouguier, § 1277. 
 
 (<T) Cf. Mitchell v. Baring (1829), 10 B. & O. 4; French Code. 
 Art. 173, and see sect. 94, post, as to protest in places where there is 
 no novary available. Cf . New York Negotiable Instruments Law, 
 § 264, which, however, omits proviso (a). 
 
198 
 
 Bills of Exchange Act, 1882. 
 
 §51. 
 
 Place of 
 protest. 
 
 Requisites 
 in form of 
 protest. 
 
 received 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 person called on to pay. 
 
 (7) A protest must contain a copy of the bill, 
 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 (e). 
 
 (e) Cf. New York Negotiable Instruments Law, § 261. 
 
. Protest. 199 
 
 A protest ordinarily contains: — (1) An exact copy of § 61. 
 
 tho bill. (2) A statement of the parties for -whom and 
 
 against whom the hill 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 state- 
 ment that no answer was given, or that the drawee or 
 acceptor could not be found. (5) 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. 405). A protest 'may be in duplicate or 
 triplicate (g) . Words requiring a protest to be under seal 
 were struck out in committee. 
 
 The protest must ordinarily be made by a notary public Notaries. 
 or other person authorised to act as such (h), but by 
 sect. 94, post, 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 the Public Notaries Act (3 & 4 
 Will. 4, c. 70), solicitors in the country may be authorized 1 
 by the Master of Faculties to practise as notaries. As to 
 the exercise of notarial functions by British diplomatic 
 and consular officers abroad, see 52 & 53 Vict. c. 10, s. 6, 
 as amended by 54 & 55 Vict. c. 50. In England the 
 notarial presentment of the bill to the drawee or acceptor 
 is almost always made by the notary's clerk (i). In 
 America the validity of a protest founded on such a pre- 
 sentment has been doubted (it) . 
 
 (8) Where a bill is lost or destroyed, or is Protest of lost 
 wrongly detained from the person entitled to hold n0 n-deiivery. 
 
 (/) See Brooks' Notary, 6th ed. p. 83; and for forms, see pp. 165 — 
 189; cf. French Code, Art. 173; German Exchange Law, Art. 88. 
 
 O) Brooks' Notary, 6th ed. p. 83; Geralopulo v. Wieler (1851), 20 
 L. J. C. P. 105. 
 
 (A) Cf. German Exchange Law, Art. 87; French Code, Art. 173. 
 As to the status and functions of a notary, see Brooks' Office of a 
 Notary, 6th ed. ; for forms, see ibid. pp. 165 — 189; and for fees in 
 London, p. 401; and see Laws of England, tit.' Notaries. 
 
 (J) Brooks' Notary, 6th ed. p. 106; and Thomson, p. 310, as to 
 Scotland. 
 
 (k) See Parsons on Bills, p. 641; and cf. New York Negotiable 
 Instruments Law, § 262, and notes in Crawford's edition. 
 
200 
 
 Bills of Exchange Act, 1882. 
 
 §51. 
 
 Excuses for 
 non-protest 
 or delay. 
 
 it, protest may be made on a copy or written 
 particulars thereof (I). 
 
 (9) Protest is dispensed with by any circum- 
 stance which would dispense with notice of dis- 
 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 (m). When 
 the cause of delay ceases to operate the bill must be 
 noted or protested with reasonable diligence (w). 
 
 Duties of 
 holder as 
 regards 
 drawee or 
 ■ acceptor. 
 
 See sect. 50 as to excuses for non-notice and 1 delay. 
 Compare sect. 46 as to excuses for non-presentment and 
 delay. See also sect. 16 (2), ante, as to indorsements 
 waiving protest. Presumably this sub-section incor- 
 porates also sect. 48 (1), ante, which excuses non -notice 
 in the case of a bill dishonoured by non-acceptance which 
 subsequently comes into the hands of a holder in due 
 course. 
 
 52. (1) When a bill is accepted generally (o) 
 presentment for payment is not necessary in order 
 to render the acceptor liable (p). 
 
 The reason is that at common law the debtor, as a 
 general" rule, is bound to Seek out his creditor to pay 
 
 (l) Pothier, No. 145 ; Brooks' Notary, 6th ed. p. 172. See further 
 as to lost bills, sects. 69 and 70, post. The particulars can usually be 
 obtained from the bill book. Cf . New York Negotiable Instruments 
 Law, § 268. 
 
 (m) Legge v. Thorpe (1810), 12 East, 171; see, e.g., Campbell v. 
 Webster (1845), 15 L. J. C. P. 4, waiver; Rothschild v. Currie (1841), 
 1 Q. B. at p. 47, delay. 
 
 (») New York Negotiable Instruments Law, § 267. 
 
 (o) See sect. 19, ante, distinguishing general and qualified 
 acceptances. 
 
 (p) Eowe v. Young (1820), 2 Bligh, H. L. at pp. 467, 468, per 
 Bayley, J.; cf. Maltby v. Murrells (1860), 5 H. & N. at p. 823. See 
 also the old form of declaration against an acceptor or maker in Sullen 
 and Leahfi's Precedents of Pleading, ed. 3. 
 
Duties of Holder :ru Payer. 201 
 
 him (q) . The practical importance of the rule is, that § 62. 
 
 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 (r). Serjeant Manning, in 
 
 a note to a ease he reports (s),' suggests that if the holder 
 
 (i.e., the creditor) were out of England during the whole 
 
 of the day on which the bill matured, it might be necessary 
 
 to 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 qualified accept- Qualified 
 ance presentment for payment is required, the aocep anoe ' 
 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 (t). 
 
 The acceptor. may, by the terms of a qualified accept- 
 ance, make presentment for payment a condition pre- 
 cedent to his liability (w). 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 (x). When a bill is. accepted payable at a par- 
 ticular place and there only, the acceptor's position is for' 
 many purposes analogous to that of the drawer of a 
 
 (g) Cranley v. Hillary (1813), 2 M. & S. 120; Walton v. Masoall 
 (1844), 13 M. & W. at p. 458, promissory note; of. Bradford Old 
 Bank v. Sutcliffe (1918), 24 Com. Cas. 31, at p. 37, distinguishing 
 in this respect collateral from direct promises to pay. 
 
 (r )Cf. Macintosh v. Saydon (1826), Ry. & M. at p. 363, as to 
 ■costs; Pierce v. Fothergill (1835), 2 Bing. N. C. 167, as to interest; 
 and cf. seet. 57 (3), post; and see Webster v. British Empire Ass. 
 Co. (1880), 15 Oh. D. 169, per Cotton, L.J. 
 
 (*) Wilmot v. Williams (1844), 7 M. & Gr. at p. 1018; cf. Startup 
 v. Maedonald (1843), 6 1. t Gr. at p. 624. 
 
 (t) 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. 51. Cf. New. York Negotiable 
 Instruments Law, § 130. 
 
 (h) Sect. 19, ante; and Eowe v. Young (1820), 2 Bligh, H. L. 391. 
 
 (x) Ealstead v. Skeiton (1843), 5 Q. B. at pp. 93, 94, Ex. Ch. 
 
202 
 
 Bills of Exchange Act, 1882. 
 
 52. cheque (y). If, then, he could show that he was damni- 
 
 " fied by the holder's omission to present on the proper day; 
 
 he would probably be discharged (z) . Apart from such 
 
 damnification he is liable until the Statute of Limitations 
 
 applies (a). 
 
 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. 
 
 No notice 
 or protest 
 required. 
 
 (3) In order to render the acceptor of a bill 
 liable it is not necessary to protest it, or that 
 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 
 notice of dishonour need be given to B. (&). The same 
 rule applies to the maker of a note (c) . 
 
 Production 
 of bill. 
 
 (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 deliver it 
 up to the party paying it (d). 
 
 See "holder" defined by sect. 2, ante; and so to 
 
 . payment, see further sect. 59 (1), post. " The person 
 
 who demands payment of a bill,'], says Piatt, B., " must 
 
 produce the bill, and offer to deliver it up on pay- 
 
 (y) Bishop v. Chitty (1742), 2 Stra. 1195; Samchurn Mulliek v. 
 Luchmeechund Sadakissen (1854),, 9 Moore, P. C. at p. 70, per 
 Parke, B. 
 
 (z) Cf. Alexander v.. Bur ch, field (1842),. 7 M. & Gr. 1061, case of a 
 cheque .where bank failed; and New York Negotiable Instruments. 
 Law, § 130, and notes in Crawford's edition ; aliter, if the acceptance 
 be general, Turner v. Hayden (1825), 4 B. & C. 1. 
 
 (a) Smith v. Vertue (1860), 30 L. J. C. P. 56. 
 
 (6) Treacher v. Bmton (1821), 4 B. & Aid. 413; cf. Eowe v. Tipper 
 (1853), 22 L. J. C. P. at p. 137. 
 
 (c) Sect. 89 (2), and Pearse v. Pemberthy (1812), 3 Camp. 261. 
 
 (d) New York Negotiable Instruments Law, § 134, to same effect. 
 
, Duties of Holder to Payee. : 203 
 
 ment " (e). " The acceptor paying the bill," says Lord § 52. 
 Tenterden, " has aright to flie possession of the instrument ~ 
 for his own security, and as his voucher and discharge pro 
 tanto in his account with the drawer " (/). When a bill 
 is accepted payable at a bank, the practice is for the banker 
 to return it to the acceptor the day after payment. 
 
 At common law an exception to the rule in this sub- 
 section was recognized 1 in the case of a non -negotiable 
 note(g). 
 
 As to the case of a lost bill or note, see note to sect. 70, 
 post. Giving up the bill is a concurrent condition, and 
 not a condition precedent to payment. The continental 
 codes for the most part provide that the holder must take 
 part -payment if it be offered. 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. 413. 
 
 The holder by producing the bill and demanding ac- 
 ceptance or payment does not warrant the authenticity of 
 the instrument, or of the bill of lading, if any, attached 
 thereto (h) . 
 
 O) Ramuz v. Crowe (1847), 1 Exch. 167, at p. 174. 
 
 (/) Hansard v. Robinson (1827), 7 B. & C. 90, at p. 94; Crowe 
 v. Clay (1854), 9 Exch. 604, Ex. Ch. ; German Exchange Law, 
 Art. 39; cf. Jones v. Broadhurst (1850), 9 C. B. at p. 182; and 
 Duncan, Fox $ Co. v. N. § S. Wales Bank (1880), 6 App. Oaa. at 
 p. 18, H. L., as to payment by drawer or indorser; and Comes v. 
 Taylor (1854), 10 Exch. 441; Woodward v. Pell (1868), L. R. 4 
 Q. B. 55, lien for costs. 
 
 (g~) Wain v. Bailey (1839), 10 A. & E. 616; Charnley v. Grundy 
 (1854), 14 C. B. at p. 614. 
 
 (h) Guarantee Trust Co. of New York v. Hannay (1918), 23 Com. 
 Cas. 399, 402. C. A.; (1918) 2 K. B. 623, 631, C. A. 
 
204 Bills of Exchange Act, 1882. 
 
 §53. 
 
 Funds in 
 hands of 
 
 Liabilities of Parties. 
 
 53. (1) A bill, of itself, does not operate as an 
 drawee. assignment of funds in the hands of the drawee 
 
 available for the payment thereof, and the drawee 
 of a bill who does not accept as required by this 
 Act is not liable on the instrument (i). 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 (k). 
 
 Illustrations. 
 
 1 . A. , having 100Z. 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 (I). 
 
 2. B. gives A. an open letter of credit authorizing him to draw 
 to the extent of 10,000?., and concluding "parties negotiating bills 
 under it are requested to indorse particulars on the back hereof." 
 A. accordingly draws a bill for 5001. in favour of C, who duly 
 indorses the particulars on the credit. B. becomes insolvent, and 
 dishonours the bill on presentment. C. can prove for 500?. against 
 B.'s estate (m). 
 
 3. A. draws a bill on B. in favour of 0., and remits funds to 
 meet it. B. does not accept the bill, but he tells C. that he has 
 
 (i) New York Negotiable Instruments Law, § 211, and notes in 
 Crawford's edition. 
 
 (Jc) Thompson on Bills, 2nd ed. p. 104; Thorburn's Bills of Ex- 
 change Act, p. 126; Bell's Principles, 9th ed. §§ 315 and 339. 
 
 (I) Sehroeder v. Central Bank (1876), 34 L. T. N. S. 735. 
 
 (to) Me Agra Bank (1867), L. R. 2 Ch. 391; cf. Ex parte Stephens 
 (1868), L. E. 3 Ch. at p. 756; Union Bank of Canada v. Cole (1877), 
 47 L. J. C. P. 100, O. A."; and Citizens Bank v. New Orleans Bank 
 (1873), L. B. 6 H. L. 352. 
 
Liabilities of Parties. 205 
 
 received the funds and promises to pay the bill. B. does not pay S 53 
 
 the bill. No action on the bill can be maintained against B., but 8 '._ 
 
 C. can sue B. for money received to his use(?t). 
 
 4. A. German bank, before war, draws a cheque on an English 
 bank in favour of an English payee, and in consequence of war 
 breaking out the cheque is refused payment. The payee cannot 
 attach the funds of the German bank in the hands of the English 
 bank (0). 
 
 According to English Law, the drawee of a bill, as Not an 
 such, incurs no liability to the holder, and there is no assignment 
 privity of contract between them (p); but privity may be E f n f g ™ u a. m 
 created by agreement external to the bill, and the rela- 
 tions of the parties are then regulated by the terms of 
 the agreement (q) . In one instance, too, a ^wasa-privity 
 has been created by sect. 74 (3), post, 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 twtto dis- 
 charged, and the holder is substituted as a creditor of the 
 banE. 
 
 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 (r). 
 
 In Scotland the rule is otherwise; thus, where A. 
 having 100?. at his bankers drew a cheque for 150Z., it 
 was held that the cheque on presentation operated as an 
 intimated assignation of the 100?. to his credit (s); so, too, 
 where a bill is accepted payable at a banker's, it operates 
 on presentment as an intimated' assignation (t). 
 
 In France, as in Scotland, when the drawee has funds, 
 drawing a bill operates as an assignment of them in favour 
 
 (n) Griffin v. Weatherby (1868), L. R. 3 Q. B. 753. 
 
 (o) Re Bank- fur Handel Industrie, (1915) 1 Ch. D. 848. 
 
 (p) Hopkinson v. Forster (1874), L. R. 19 Eq. 74, cheque; Shand 
 v. Jhi Buisson (1874), L. R. 18 Eq. 283, bill of exchange; Carr v. 
 Nat. Bank (1871), 107 Massachus. R. 45; Netherlands Code, Art. 110; 
 cf. Vaughan v. Halliday (1874), L. R. 9 Ch. 561. 
 
 (q) Robey v. Oilier (1872), L- R. 7 Ch. 695; Ranken v. Alfaro 
 (1877), 5 Ch. D. 786. 
 
 (r) Hill v. Royds (1869), L. R. 8 Eq. 290; Yates v. Bell (1820), 3 
 B. & Aid. 643; Moore v. Bushell (1857), 27 L. J. Ex. 3. By § 147 
 of the New York Negotiable Instruments Law, " When the instrument 
 is made payable at a bank it is equivalent to an order to the bank to 
 pay the same for the account of the principal debtoT thereon." 
 
 (s) British Linen Co. v. Carruthers (1883), 10 Sess. Cas. 923. 
 (t) British Linen Co. v. Rainey (1885), 12 Sess. Cas. 825. 
 
206 Bills of Exchange Act, 1882. 
 
 § 53. of the holder, and creates a privity between holder and 
 
 drawee (u) . 
 
 cmlH ° f 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 amount, and promises that he will 
 repay such sum to the person advancing the same or 
 accepts , 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 name, requesting him 
 to make such advance to a third person " (x). 
 
 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 appropria- 
 tion of that sum so as to create a trust. It is an under- 
 taking that the person giving it will act as paymaster to 
 the person to whom 1 it is given, up to a certain amount, 
 on his performing 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 payment (y) . 
 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. (z). By sect. 32 of the 
 Stamp Act, 1891, post,, p. 397, a credit to> be used in the 
 United Kingdom requires a stamp. 
 
 A, letter of credit is not a negotiable instrument, iand 
 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 (a) . 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 authorized by 0. 
 
 (it) Bravard-Demangeat, 7th ed. p. 235; Nouguier, §§ 392 — 431. 
 , (x) Story, §§ 459 et seq. See the American cases on credits analysed 
 iii British Linen Co. v. Caledonian Ins. Co. (1861), 4 Macq. H. L. 
 107, at p. 112, n. 
 
 (y) Morgan v. Lariviere (1875), L. K. 7 H. L. at p. 432. And 
 see note to British Linen Co. v. Caledonian Ins. Co. (1861), 4 Macq. 
 H. L. at p. 109. 
 
 (z) Union Bank of Canada v. Cole (1877), 47 L. J. C. P. at p. 109. 
 
 (a) Orr v. Union Bank (1854), 4 Macq. H. L. 513, see at p. 523. 
 
Liabilities of Parties. : 207 
 
 to receive the amount, it was held: that payment to him § 53. 
 did not discharge the paying bank (&). 
 
 London is the great accepting centre of the world, and 
 much foreign trade, some of which never comes near 
 England, is financed by bills on London. These bills and 
 others are drawn under various forms of credits framed 
 to meet the exigencies of commerce. For example, besides 
 the familiar traveller's credits, there are . confirmed and 
 unconfirmed credits (c), clean credits and documentary 
 credits, rolling credits, and the London acceptance 
 credit (d) . An unconfirmed credit may be described as a 
 mere authority, to draw bills in accordance with the terms 
 of the credit, while a confirmed credit contains a binding 
 promise to honour bills so drawn. 
 
 Drawee and Dmt&er. — Subject to the rule that a cus- Relations of 
 tomer is entitled to draw cheques on his banker (post, drawer and 
 p. 291), a creditor, as such, is not entitled to draw on his rawee - 
 debtor in respect of his debt; and the drawee of an unac- 
 cepted bill of exchange is under no obligation to accept or 
 pay it unless he has for valuable consideration expressly 
 or impliedly agreed to do so (e) . ' 
 
 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 something special in the- contract, it seems that the 
 authority or obligation to accept -is not revoked by the 
 death of the drawer (g), while it is by notice of ,his bank- 
 
 (S) British Linen Co. v. Caledonian Ins. Co. (1861), 4 Macq. 
 H. L. 107. 
 
 (c) As to an unconfirmed credit, see Societe Coloniale v. London 
 <J Brazilian Bank (1911), 17 Com. Oas. 1, C. A. ; Panoutsos v. 
 Raymond Badley, (1917) 2 K. B. 473, C. A. (unconfirmed credit 
 when confirmed credit promised); Jordeson if Co. v. London Hard- 
 wood Co. (1913), 19 Com. Cas. 161, 173. 
 
 (d) See Spalding's Foreign Exchange and Foreign Bills, Chap. XV. 
 
 (e) Chitty. p. 200; cf. Goodwin v. Robarts (1875), L. R. 10 Ex. 
 at p. 351, Ex. Ch.; Re Boyse (1886), 33 Ch. D. 609, at p. 624; see 
 e.g., Smith v. Brown (1815), 6 Taunt; at p. 344; Laing v. Barclay 
 (1823), 1 B. & C. 398; Huntley v. Sanderson (1833), 1 Or. & M. 
 467 (agent authorised to draw on principal; contract of indemnity); 
 Cumming v. Shand (1860), 29 L. J. Ex. at p. 132 (implied agreement 
 to let customer overdraw); English Credit Co. v. Ardain (1871), L. R. 
 5 H. L. 64 (construction of credit). 
 
 (/) Pothier, No. 92; Nouguier, § 442; Belgian Code de Commerce, 
 Art. 8. ' 
 
 (g) Chitty, p. 202; Story., § 250; Cutts v. Perkins (1815), 12 
 
Advice 
 
 2 °8 Bills of Exchange Act, 1882. 
 
 § 63. ruptcy; for this renders funds in the hands of the drawee 
 no longer available for the payment -of the bill, and 
 incapacitates the drawer from fulfilling his part of the 
 contract (h) . The bankruptcy of the drawee is not per 
 se a breach of .contract with the drawer (i) . In France the 
 engagement between drawer and drawee is held to be a 
 contract of " mandat," and their relations are regulated 
 accordingly (&). 
 
 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 (I). If 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. (See Story 
 on Bills, §68.) 
 
 When the drawee breaks his contract with the drawer 
 by dishonouring his draft, the oonsequences . reasonably 
 resulting from the breach of contract constitute the 
 measure of damage (m) . Thus : — 
 
 1. A customer having a balance of 200Z. at his 
 banker's draws a cheque for 100L, or accepts a bill for 
 1001. 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 (w). 
 
 2. A., in a foreign country, draws on B., in England, 
 under a letter of credit. B. dishonours his draft. A. 
 may recover the re-ex change and notarial expenses which 
 he has had to pay i to the holder (o), and also the cost of 
 telegrams, &c. consequent on the dishonour (p). 
 
 Massachua. E. 206; cf. Silling v. Devaux (1841), 3 M. & Gr. at 
 p. 574; Att.-Gen. v. Pratt (1874), L. E. 9 Ex. 140. 
 
 Qi) Pothier, No. 96; of. Citizens Bank v. New Orleans Bank (1873), 
 L. E. 6 H. L. 352. 
 
 (») Ex parte Tondeur (1867), L. E. 5 Eq. 160; of. Ex 'parte Agra 
 Batik (1870), L. E. 9 Eq. at p. 733. 
 
 (k) Pothier, Nos. 91 — 100; Bravard-Demangeat, 7th ed. p. 219; 
 Code Civil, Arts. 1984—2010. 
 
 (I) Arnold v. Cheque Bank (1876), 1 C. P. D. at p. 586; Nouquier, 
 §§ 281—284; Pothier, No. 36. 
 
 (m) Prehn v. Royal Bank of Liverpool (1870), L. E. 5 Ex. 92; cf. 
 Haley v. Jones (1858), 78 Massachus. E. 260 (accommodation bill). 
 ■ (») Rolin v. Steward (1854), 23 L. J. C. P. 148; cf. Cumming v. 
 Shand (1860), 59 L. J. Ex. 129 ; Summers v. City Bank (1874), L. E. 
 9 C. P. 580; Boyd v. Pitt (1863), 14 Ir. O. L. E. 43. 
 
 (o) Walker v. Hamilton (1860), 1 De-Q. F. & J. 602; Re General 
 South American Co. (1877), 7 Ch. D. 637. 
 
 (j>) Prehn v. Royal Bank of Liverpool (1870), L. E. 5 Ex. 92; 
 Larios v. Bonany (1873), L. E. 5 P. C. 346, 357. 
 
Liabilities of Parties. 209 
 
 Although possibly an acceptor, as such, may not be § 53. 
 
 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 (q), but the probability is, that the 
 cases in which it was held that an acceptor was not liable 
 for re-exchange are simply overruled (r) . As to paying 
 a draft contrary to instructions, see Tmbell v. London 
 Suburban Bank (s) . 
 
 54. The acceptor of a bill, by accepting it — Liability of 
 (1) Engages that he will pay it according to aoOBp0! 
 the tenor of his acceptance (t); 
 
 See sect. 19, ante, as to general and qualified acceptances, 
 and sect. 52, ante, 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 note to 
 sect. 72 (5), post (conflict of laws). As to measure of 
 damages, see sect. 57, post. The drawee of a bill, by 
 accepting" it, becomes the party primarily liable thereon 
 to the holder (u) . See the primary, and, in general, abso- 
 lute, liability of an acceptor distinguished from the • 
 secondary and conditional liability of a drawer or indorser 
 by Bayley, J. (x). As to the relations inter se of joint 
 acceptors who are not partners, see per Wilde, C.J. («/). 
 
 In the case of a bill accepted for value the acceptor is 
 frequently described as the principal debtor, and the 
 drawer and indorsers as his sureties («) ; but, as Lord 
 
 (g) Cf. sect. 57 (2), post. 
 
 (r) Cf. Ex parte Robarts (1886), 18 Q. B. D. 286, C. A. 
 
 (s) Twibell v. London Suburban Bank (1869), W. ST. p. 127; Paget 
 on Banking, ed. 2, p. 112 ; London 4 § 8. W: Bank v. Buszard (1919), 
 35 T. L. E. 142. 
 
 (i) Smith v. Vertue (1860), 30 L. J. C. P. 56, at p. 60; cf. Walton 
 v. Mascall (1844), 13 M. & W. at p. 458; French Code, Art. 121; 
 German Exchange Law, Art. 23; New York Negotiable Instruments 
 Law, § 112. 
 
 («) Philpot v. Briant (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. 
 
 (y) Harmer v. Steele (1849), 4 Exch. at p. 13. 
 
 (z) See, e.g., Cook v. Lister (1863), 32 L. J. O. P. at p. 127, per 
 Willes, J.; Rouquette v. Overmann (1875), L. R. 10 Q. B. at p. 536, 
 per Cockburn, O.J. 
 
 c. 14 
 
210 
 
 Bills of Exchange Act, 1882. 
 
 §54. 
 
 Tender 
 
 post diem. 
 
 Estoppels 
 
 binding 
 
 aoceptor. 
 
 Blackburn has pointed out, this is not an accurate ex- 
 pression. 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 1 
 to the equities of a surety, when the bill has been dis- 
 honoured, though not before (a) . 
 
 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(c); 
 
 (b) In the case of a bill payable to drawer's 
 order, the then capacity of the drawer 
 to indorse (d), but not the genuineness («) 
 or validity (/) of his indorsement ; 
 
 (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 
 
 (a) Duncan, Fox # Co. v. N. # S. Wales Bank (1880), 6 App. Cas. 
 1 H. L. at p. 19. 
 
 (6) Poole v. Tumbridge (1837), 2 M. & W. 223; Dobie v. Larkan 
 (1855), 10 Exch. 776; of. Leake on Contracts, ed. 3, p. 861. 
 
 (c) Cooper v. Meyer (1830), 10 B. & O. 468; Sanderson v. Collman 
 (1842), i'M. & Gr. 209; National Park Bank v. Ninth Bank (1871), 
 46 New York E. 77 ; New York Negotiable Instruments Law, § 112. 
 
 (d) Braiihwaite v \ Gardiner (1846), 8 Q. B. 473 (bankrupt); Smith 
 v. Marsack (1848), 18 L. J. C. P. 65 (married woman before the Act 
 of 1882); HaUijax v. Lyle (1849), 3 Ex$h. 446 (corporation having 
 no power to issue bills). 
 
 (e) Beeman v. Duck (1843), 11 M. & W. 251; cf. Smith v. Chester 
 (1787), 1 T. E. 654. 
 
 (/) Robinson v. Harrow (1817), 7 Taunt. 455 (bill drawn and 
 indorsed "per proc." without authority); Garland v. Jaaomb (1873), 
 L. E. 8 Ex. 216, Ex. Ch. (bill drawn and. indorsed by partner in non- 
 trading firm without authority of co-partner). 
 
Liabilities op Parties. 211 
 
 indorse (ff), but not the genuineness or §54. 
 validity of his indorsement. 
 
 This section deals only with estoppels arising on the 
 bill. There may, of course, be other estoppels arising 
 on evidence: see sect. 24 and notes thereto, ante. If the 
 amaunt of the bill be altered, or if any other material 
 alteration be made in it, the acceptor is not precluded by 
 this section from setting it up (h) . 
 
 The distinction between capacity and authority (ante, 
 p. 68) reconciles the cases, which otherwise appear to be in 
 conflict. It is clear that capacity to draw must be identical 
 with capacity to indorse, this being a question of status ; 
 while an authority to draw on behalf of another does 
 not necessarily include an authority to indorse on his 
 behalf {%). 
 
 Where the drawer of a bill payable to drawer's order 
 was a fictitious person, it was said in some of the cases 
 that the acceptor undertook to pay. to an indorsement in 
 the same handwriting as the drawer's signature (k); but, 
 in other cases, it was said that the bill might be treated 
 as payable to bearer (I). Sect. 7 (3) of the Act, ante, has 
 adopted the latter view. 
 
 The acceptor may, of- course, decline to pay on the 
 ground that the payee's signature has been forged (m). 
 If, however, the payee be a fictitious person, the holder is 
 entitled to treat the bill as if drawn payable to bearer. 
 See sect. 7 (3), ante. 
 
 (^) Daniel, § 536; cf. Drayton v. Dale (1823), 2 B. & C. 293, at 
 p. 299; New York Negotiable Instruments Law, § 112. 
 
 (K) White v. Central National Bank (1876), 64 New York E. 316; 
 cf. Burchfield v. Moore (1854), 23 L. J. Q. B. 261; and sect. 64, post, 
 as to alterations. 
 
 (i) Cf. Prescott v. FUnn (1832), 9 Bing. at p. 22; Indian Code, 
 § 27. 
 
 (*) Cooper v. Meyer (1830), 10 B. & C. 468; London # 8. W. 
 Bank v. Wentworth (1880), 5 Ex. D. 96. 
 
 (I) Beeman v. Duck (1843), 11 M. & W. at p. 256; cf. Phillips v. 
 im Thurn (1866), L. B. 1 C. P. at p. 471. 
 
 (m) See sect. 24 and notes thereto, ante; and cf. Robarts v. Tucker 
 <1851), 16 Q. B. 560. 
 
 14(2) 
 
212 
 
 Bills op Exchange Act, 1882. 
 
 §65. 
 
 Liability of 
 drawer. 
 
 Estoppels 
 
 binding 
 
 drawer. 
 
 55. (1) The drawer of a bill by drawing it — 
 
 (a) Engages that on due presentment it shall 
 be accepted and paid according to its tenor, 
 and that if it be dishonoured he will com- 
 pensate the holder or any indorser who is 
 compelled to pay it, providing that the ♦re- 
 quisite proceedings on dishonour be duly 
 
 1 taken (n) ; 
 
 (b) Is precluded from denying to a holder in 
 due course the existence of the payee and his 
 then capacity to indorse (o). 
 
 As to " dishonour," see sects. 43 and 47, ante. As to 
 express stipulations in the bill restricting the ordinary 
 liability of the drawer, or releasing the holder from the 
 performance of his ordinary duties, see sect. 16, ante. Ae 
 to measure of damages, see sect. 57, post. 
 
 The drawer and indorsers of a bill are jointly and 
 severally responsible to the holder for the due acceptance 
 and payment thereof (p) . If it be dishonoured the holder 
 may enforce payment from! the drawer, or an indorser, or 
 the acceptor, or all or any of them at his option. The 
 liability of the drawer of an accepted bill must in general 
 be measured by that of the acceptor, their relations for 
 
 (») See per Lord Lyndhurst in Siggers v. Lewis (1834), 1 C. M. & 
 R. at p. 371 (cause of action); per Parke, B., in Whitehead v. Walker 
 (1842), 9 M. & W. 506, at p. 516 (dishonour by non-acceptance) ; 
 per Lord Kingsdown in Allen v. Kemble (1848), 6 Moore, P. C. at 
 p. 321 (set-off or compensatio according to foreign law); per Cress- 
 well, J., in Jones v. JBroadhurst (1850), 9 C. B. at p. 181 (payment 
 by drawer); per Alderson, B., in Gibbs v. "Fremont (1853), 9 Exch, 
 at p. 30 (measure of damages); and see note to sect. 54 (1); per 
 North, J., in Me Commercial Bank of South Australia (1887), 36 
 Ch. D. at pp. 525, 526 (measure of damages when bill dishonoured 
 abroad). 
 
 (o) Collis v. Emett (1790), 1 H. Bl. 313; of. Phillips v. im Thurn 
 (1865), 18 C. B. N. S. 694, at p. 701; Chamberlain v. Young, (1893) 
 2 Q. B. 206, C. A., per Bowen, L.J. ; of. New York Negotiable Instru- 
 ments Law, § 111. 
 
 (p) Rouquetle v, Overmann (1875), L. R. 10 Q. B. 525, at p. 537; 
 German Exchange Law, Arts. 8 and 49; Netherlands Code, Art. 146. 
 By Art. 118 of the Prench Code the drawer and indorsers are " garants 
 solidaires " for the acceptance and payment of the bill. 
 
Liabilities of Parties. 213 
 
 most, not all, purposes resembling those of principal and § 65. 
 surety (q). See note to sect. 54 (1), ante. 
 
 (2) The indorser of a bill, by indorsing it' — Liability of 
 
 (a) Engages that on due presentment it shall 
 be accepted and paid according to its tenor, 
 and that if it be dishonoured he will com- 
 pensate the holder or a subsequent indorser 
 who is compelled to pay it, provided that the 
 requisite proceedings on dishonour be duly 
 taken (r) ; 
 
 (b) Is precluded from denying to a holder in Estoppels 
 due course the genuineness and regularity in indorser. 
 all respects of the drawer's signature and all 
 previous indorsements (s) ; 
 
 (c) Is precluded from denying to his immediate 
 or a subsequent indorsee that the bill was at 
 the time of his indorsement a valid and sub- 
 sisting bill, and that he had then a good title 
 thereto (t). 
 
 The indorser of a bill is in the nature of a new 
 drawer (u), that is to say, his relations with the holder 
 resemble those of a drawer. " Ce contrat," says Pothier, 
 No. 79, " est entierement semblable a celui qui intervient 
 
 \_ 
 
 (y) Rouquette v. Overmann (1875), L. K. 10 Q. B. 525, at pp. 536, 
 ■537 
 
 (r) Suse v. Pompe (1860), 30 L. J. C. P. at p. 78, per Byles, J.; 
 cf. Dunean, Fox # Co. v. N. $ S. Wales Bank (1880), 6 App. Oas. 
 1, at p. 18, per Lord Blackburn; German Exchange Law, Art. 18; 
 cf. New York Negotiable Instruments Law, § 116. 
 
 (s) Ex 'parte Clarke (1792), 3 Brown, C. O. 238; Thiaknesse v. 
 Bromilow (1832), 2 Cr. & J. 425; McGregor v. Rhodes (1856), 6 
 E. & B. 266. 
 
 (i) Cf. Burehfield v. Moore (1854), 23 L. J. Q. B. 261, as modified 
 by sect. 64; and New York Negotiable Instruments Law, § 116. 
 
 (m) Penny v. Innes (1834), 1 C. M. & E. at p. 441, per Parke, B.; 
 Steele v. M'Kinlay (1880), 5 App. Cas. at pp. 767, 768, per Lord 
 Blackburn; cf. Bnrmester v. Hogarth (1843), 11 M. & W. 97. 
 
214 
 
 Bills of Exchange Act, 1882. 
 
 55. 
 
 entro le tireur et le donneur de valeur." It is conceived 
 that the words " according to its tenor " mean the tenor of 
 the bill at the time of its indorsement^ and not its tenor at 
 the time it was drawn, if its effect has been varied, e.g., 
 by a qualified acceptance, or by an alteration of the 
 sum payable; see sub-sect, (b) (as). As to measure of 
 damages, see sect. 57, post. By sect. 89 (2), where the 
 payee of a promissory note indorses it, his liability 
 resembles that of the drawer of an accepted bill payable 
 to drawer's order. 
 
 If the holder sue an indorser it is no defence to show 
 that the drawer's or acceptor's signature has been forged, 
 or that the amount of the bill was altered after issue and 
 before indorsement, unless such alteration avoids the bill 
 under the stamp, laws. 
 
 stranger Kg Where a person signs a bill otherwise than 
 
 signing bill r ® 
 
 liable as . as drawer or acceptor, he there by incurs the 
 liabilities of an indorser to a holder in due 
 course (y). 
 
 Illustrations. 
 
 1. The holder of a Ml already indorsed in blank, and therefore 
 negotiable by mere delivery, indorses it, and passes it away. He 
 thereby incurs the liabilities of an indorser (a). 
 
 2. A note is made payable to 0. or order. After issue D. adds 
 his signature thereto, to accommodate and guarantee the maker. 
 D. is not liable las a new maker (a), but he is liable as an indorser, 
 even if he write his name on the face of the note (6) . 
 
 3. The payee of a non-negotiable note indorses it to D., who 
 indorses it to the plaintiff. The plaintiff, it seems, cannot recover 
 from D. as an indorser, for the stamp is exhausted (c). 
 
 (x) Compare, however, the dictum of Lush, J., in Lebel v. Tucker 
 (1867), L. E. 3Q. B. at p. 81, with the dictum of Alderson, B., 
 in Gibbs v. Fremont (1853), 9 Exch. at p. 31. 
 
 (y) Steele v. M'Kinlay (,1880), 5 App. Cas. at pp. 772, 782. It 
 is clear that an indorsement by way of receipt does not come within 
 this rule. Cf. Keane v. Beard (1860), 8 O. B. N. S. at p. 382, per 
 Byles, J., and sect. 59, post; New York Negotiable Instruments Law, 
 §§ 113 — 115, modify and elaborate the provisions of this section. 
 
 (z) Cf. Fairelough v. Pavia (1854), 9 Exch. at p. 695. 
 
 («) Gwinnell v. Herbert (1836), 6N.&M. 723. 
 
 (6) Ex parte Yates (,1858), 2 De G. & J. 191, L.JJ. Qw. if he be 
 liable to the payee, or only to subsequent parties? See Steele v. 
 M'Kinlay, ubi supra. 
 
 (c) Plvmley v. Westley (1835), 2 Bing. N. C. 249; but he can sue 
 on the consideration, although he has not given notice of dishonour. 
 
Liabilities of Parties. 215 
 
 4. The drawer of a bill indorses it specially to the plaintiff. C. § 56. 
 
 afterwards backs it with his signature to guarantee the drawer, — - 
 
 and then the plaintiff adds his indorsement. The plaintiff can 
 
 recover from C. as an indorser (d) . 
 
 5. A bill is drawn payable to drawer's order and accepted. C. 
 afterwards backs it with his signature. 0. is liable as indorser 
 to subsequent parties, but parol evidence is not admissible to 
 show that C. intended to be liable to the drawer in case the bill 
 was dishonoured. Such an agreement must be in writing to 
 satisfy the Statute of Frauds (e). 
 
 6. The drawer of a bill indorses it to 0., who has undertaken 
 to be answerable for the price of goods supplied to the acceptor. 
 C. then indorses the bill back to the drawer. The drawer, in his 
 character of indorsee, can sue 0. as indorser (/) . 
 
 7. A. draws a bill on B., payable to his own order. B. accepts 
 the bill, and gets O., his father, to write his name on the back of 
 the bill in order to guarantee it. At the time when 0. wrote his 
 name, the bill had not been indorsed by the drawer. The drawer 
 cannot sue C, the .indorser (g). 
 
 8. C. undertakes to guarantee a debt due from B. to A. B. 
 signs a blank acceptance, and 0. adds his signature as indorser. 
 The document is handed to A., who fills it up as a bill payable 
 to drawer's order, inserting his own name as drawer. C, though 
 an indorser, is liable to A., the drawer, on this bill (h). 
 
 As to the liability of an indorser, see sect. 55 (2), ante. 
 As to his power to vary his liability by express stipulation, 
 see sect. 16, ante, which may perhaps be regarded as 
 incorporated. 
 
 An indorsement, properly so called, must be made by 
 the holder; but when a person who is not the holder of 
 a bill or note hacks it with his signature, he is not an 
 indorser, hut a quasi-indLorser . The law annexes to his 
 act consequences similar to those which follow the indorse- 
 ment of a bill by the holder. Formerly, when a stranger 
 
 (d~) Penny v. Innes (1834), 1 C. M. & R. 439; cf. Young v. Glover 
 (1857), 3 Jur. N. S. 637, Q. B. 
 
 (e) Steele v. M'KMay (1880), 5 App. Cas. 754, H. L.; overruling, 
 it seems, Matthews v. Bloxsome (1864), 33 L. J. Q. B. 209. 
 
 (/) Wilkinson v. Vnwin (1881), 7 Q. B. D. 636, C. A.; distin- 
 guishing Steele v. M'KMay, supra. Cf. sect. 37, ante. 
 
 (g) Jenkins # Sons v. Coomber, (1898) Q. B. 168; followed and 
 approved, Shaw $ Go. v. Solland and Neal, (1913) 2 K. B. 15, O. A. 
 
 (Ji) Glenie v. Bruce Smith, (1908) 1 K. B. 263, O. A. If the bill 
 had been drawn payable to bearer no question could have arisen. 
 Ibid, at p. 269; but see § 114 of the New York Negotiable Instru- 
 ments Law, and cases cited in Crawford's edition; and Shaw ^ Co. 
 v. Holland and Neal, (1913) 2 K. B. 15, C. A., where it is pointed 
 out that the Glenie Case turned on sect. 20 (authority to fill up in- 
 complete bill). 
 
216 Bills of Exchange Act, 1882. 
 
 § 66. to the bill backed it with his signature, a pleading diffi- 
 
 culty arose, as to -whether he was to be described as an 
 
 indorser or as a new drawer. The difficulty was, it is 
 submitted, simply technical, for the consequences are 
 identical. Now, it would be sufficient to state the facts 
 or describe him as an indorser. By § 113 of the New York 
 Negotiable Instruments Law, " a person placing his sig- 
 nature upon an instrument .otherwise than as maker, 
 drawer, or acceptor, is deemed to be an indorser unless he 
 clearly indicates by appropriate words his intention to be 
 bound in some other capacity." This, too, is English 
 law, e.g., if a person writes a guarantee on a bill he is 
 liable as a guarantor (i). By § 114 of the New York 
 Law, " Where a person not otherwise a party to an instru- 
 ment places thereon his signature in blank before delivery 
 he is liable as an indorser in accordance with the following 
 rules: (1) if the instrument is payable to the order of a 
 third person, he is liable to the payee and all subsequent 
 parties; (2) if the instrument is payable to the order of 
 the maker or drawer, he is liable to all parties subsequent 
 to the maker or drawer; (3) if he signs for the accommo- 
 dation of the payee he is liable to all parties subsequent 
 to the payee." 
 
 It is to be noted that if two or more persons indorse a 
 bill or note, to accommodate the acceptor or maker, their 
 relations inter se are those of co-sureties, and not of 
 sureties in succession according to the order of their names 
 on the bill (fc). 
 
 Qu . as to the power of the Court to rectify a bill where 
 the parties' names have been transposed by mistake? (I). 
 -A-** 1 - Avals. — Such an indorsement as is referred to by this 
 
 section would in continental countries be termed an 
 " aval," which is said by Lord Blackburn to be an anti- 
 quated term signifying '•' underwriting " (to). According 
 to Pothier (n), an " aval " might be either on the bill 
 itself or on a separate paper, and if such an " aval " was 
 given by anyone, his obligation to all subsequent holders 
 
 (0 Stagg and Mantle v. Brodrick (1895), 12 T. L. B. 12. 
 
 (k) Macdonald v. Whitfield (1883), 8 App. Cas. 733, P. C. 
 
 (Z) See Matthews v. Bloxsome (1864), 33 L. J. Q. B. 209, as com- 
 mented on in Steele v. M'Kinlay (1880), 5 App. Cas. at p. 774; Druiff 
 v. Parker (1868), L. E. 5 Eq. 131; cf. illustration 8, ante, p. 215. 
 
 (»».) Steele v. M'Kinlay (1880), 5 App. Cas. at p. 772. 
 
 («) As eited by Lord Blackburn, ubi supra. 
 
Liabilities of Parties. 217 
 
 of the bill was precisely the same as that of the person to § 66. 
 facilitate whose transfer the aval was given, and under 
 whose signature it was written. English and Scotch law, 
 as Lord Blackburn proceeds to point out, do not go so far 
 as this. If a person not the holder indorse a bill, he is 
 not a surety for the drawee or acceptor to the drawer; 
 " such an indorsement creates no obligation to those who 
 previously were parties to the bill; it is solely for the 
 benefit of those who take subsequently. It is not a. 
 •collateral engagement, but one on the bill, and it is for 
 that reason and because the original bill has incident to 
 it the capacity of an indorsement in the nature of an 
 ' aval,' that such an indorsement requires no new 
 stamp " (o). 
 
 Nouguier, dealing with modern French law, defines an 
 " aval " as " une convention au moyen de laquelle un tiers, 
 •etranger a la lettre de change, se rend caution solidaire du 
 paiement a 1'echeance en faveur du tireur, de l'un des 
 endosseurs ou de l'accepteur. Cet acte a regu le nom 
 A'aval parce qu'il signifie faire valoir " (p). 
 
 If a person undertakes, for a commission, to indorse the 
 bills of another person, the holder should apply for the 
 indorsement within a reasonable time (q) . 
 
 57. Where a bill is dishonoured (r), the measure Measure of 
 •of damages, which shall be deemed to be liqui- ^inft 8 
 dated damages (s), shall be as follows : parties to 
 
 i ii dishonoured 
 
 (1) The holder may recover from any party bill. 
 
 (o) Steele v. M'Kirilay (1880), 5 App. Cas. 754; see also at p. 782, 
 per Lord Watson, and his comments thereon in Macdonald v. Whitfield 
 (1883), 8 App. Cas. 733, at p. 748. 
 
 (p) Nouguier, §§ 821—840; French Code, Arts. 141, 142. See 
 also Spanish Code, Arts. 475 — 478; Netherlands Code, Arts. 130—132; 
 Italian Code, Arte. 274 — 276, which regulate avals for their different 
 countries. 
 
 (?) Payne v. Ives (1823), 3 D. & R. 664; discussed Goring v. 
 Edmonds (1829), 6 Bing. 94, at p. 99. 
 
 (r) See sect. 43, dishonour by non-acceptance; sect. 47, dishonour 
 by non-payment. 
 
 («) This enables the damages given by this section to be recovered 
 under Order XIV. See London and Universal Bank v. Glanearty, 
 (1892) 1 Q. B. 689, "interest till payment or judgment"; Lawrence 
 v. Wilooeks, (1892) 1 Q. B. 696, C. A., noting and interest till pay- 
 ment; Dando v. Boden, (1893) 1 Q. B. 318, notarial charges described 
 in the writ as " bank charges." At common law the expenses of noting 
 -an inland bill could only be recovered as special damages (Rogers v. 
 Hunt (1854), 10 Exch. 473); see further the notes to Order III. 
 rule 6, in the Annual Practice. 
 
218 Bills of Exchange Act, 1882. 
 
 § 57- liable on the bill, and fhe drawer who has. 
 
 been compelled to pay the bill may recover 
 from the acceptor, and an indorser who has 
 been compelled to pay the bill may recover 
 from the acceptor or from the drawer, or 
 from a prior indorser — 
 
 (a) The amount of the bill : 
 
 (b) Interest thereon from the time of pre- 
 sentment for payment if the bill is pay- 
 able on demand (t), and from the matu- 
 rity of the bill in any other case (w) : 
 
 (c) The expenses of noting, or, when pro- 
 test is necessary (%), and the protest has- 
 been extended, the expenses of protest. 
 
 Illustrations. 
 
 1. Bill drawn in Tobago on London and accepted. The acceptor 
 fails. The bill is remitted to Tobago and paid by the drawer. 
 The drawer can recover the re-exchange from the acceptor as- 
 unliquidated damages (y) . 
 
 2. A bill is drawn in Australia by a bank there on its English 
 branch, and is dishonoured in England. The holder can only 
 claim interest at the English, and not the Australian, rate (z). 
 
 3. Bill drawn in Bio on England. .The acceptor fails. The-- 
 bill is protested for better security, and is then accepted and paid, 
 for the honour of the drawer by an English bank. The bank can 
 only recover from the acceptor the damages ' given by the sub- 
 section, and not the expenses of protest for better security or 
 commission for accepting for honour (a). 
 
 4. Bill drawn in Switzerland on London. It is accepted and. 
 dishonoured by non-payment. The holder can recover the 
 damages mentioned in sub-sect. (1), but is not entitled to recover- 
 commission, brokerage (courtage), stamps, or postage (6). 
 
 (0 Re East of England Banking Co. (1868), L. R. 4 Oh. 14. 
 
 (u) Lithgow v. Lyon (1805), Coop. Oh. Ca. 29; ' Laing v. Stone- 
 (1828), 2 M. & By. 562. 
 
 (x) Foreign bill, not note. See sect. 51 (2), ante. 
 
 \y) Ex parte Roberts (1886), 16 Q. B. D. 702, affirmed 18 Q. B. D.. 
 286, C. A. ; see note, post, and Dicey's Conflict of Laws. 
 
 (z) Re Commercial Bank of South Australia (1887), 36 Oh. D. 522. 
 
 (a) Ex parte Bank of Brazil, Re English Bank of the River Plate,. 
 (1893) 2 Ch. 438. 
 
 (6) Bdnque Populaire de Bienne v. Cave (1895), 1 Com. Cas. 67,, 
 
Liabilities of Parties. 219 
 
 As to interest proper, reserved by the bill itself, see § 57, 
 
 sect. 9 (3), ante. Sect. 57 (1) must be read subject to 
 
 subject. (3), post, which gives the Court a control over 
 interest. The bill must be produced at the trial to 
 entitle the plaintiff to interest before writ (c) . In one 
 case it was said that interest could only be recovered 
 from the drawer or indorser from the time when he 
 received notice of dishonour (d) . But that case must be 
 regarded either as no longer law, or as a case where 
 interest was under the special circumstances disallowed 
 by the jury, as provided for by sub-sect. (3). Since 
 the Act it seems that when a bill is dishonoured by 
 non-acceptance, interest can only be recovered from 
 the date of its maturity, and not from the date of its 
 dishonour. This seems fair in principle, but perhaps does 
 not accord with the practice before the Act (e) . By 
 French Code, Art. 184, and Netherlands Code, Art. 195, 
 interest accrues from the day of protest for non-payment. 
 By German ' Exchange Law, Art. 50, interest accrues 
 from the day of maturity. Interest in England is usually 
 calculated and allowed at the rate of 5 per cent. (/). 
 
 The sub-section though general in terms appears to 
 apply only to bills dishonoured at home (g) . 
 
 The sub-section, moreover, is not exhaustive. It does 
 not apply to" the case of a foreign drawer or indorser who 
 may be liable for re-exchange, when resorted to in his 
 own country. But sect. 97, post, saves the law merchant 
 when not inconsistent with the Act. This makes good 
 the casus omissus; therefore, when a foreign drawer has 
 paid re-exchange, he may recover it from the English 
 acceptor, and if he is liable for re-exchange, he may prove 
 for it in bankruptcy against the acceptor's estate before 
 actual payment (h). 
 
 per Mathew, J., in oases whore sub-sect. (1) applies the damages 
 awarded by it are exhaustive. 
 
 (c) Button v. Ward (1850), 15 Q. B. 26. 
 
 (£) Walker v. Barnes (1813), 5 Taunt. 240. 
 
 (e) Harrison v. Dickson (1811), 3 Camp. 52, u.; cf. Suse v. Pompe 
 (1860), 8 C. B. N. S. at p. 566. 
 
 (/) Mayne on Damages, ed. 8, p. 195. 
 
 Iff) Me Commercial Bank of South Australia (1887), 36 Ch. D. 522. 
 
 (A) Ex -parte Robarts, Re Gillespie (1885), 16 Q. B. D. 702; 
 affirmed, with reduction of amount, 18 Q. B. D. 286, C. A. According 
 to the judgment of Cave, J., the object of the section is to fix the 
 amount which may be inserted in a specially-indorsed writ as liqui- 
 dated damages, and not to deprive any party of special damages. But 
 
220 
 
 Bills of Exchange Act, 1882. 
 
 § 67. (2) In the case of a bill which has been dis- 
 
 Re-exchange. honoured abroad, in lieu of the above 
 
 damages, the holder may recover from the 
 drawer, or an indorser, and the drawer or an 
 indorser who has been compelled to pay the 
 bill may recover from any party liable to 
 him the amount of the re-exchange with in- 
 terest thereon until the time of payment (if). 
 
 Bills dishonoured abroad fall exclusively under this 
 sub-section. The holder cannot at his option claim under 
 sub-sect. (1) (it). 
 
 It was formerly held that an English acceptor was not 
 liable for re-exchange (I); but this rule, it appears, is no 
 longer law (to). "Re-exchange," in its usual applica- 
 tion, means the loss resulting from the dishonour of a bill 
 in a country different to that in which it was drawn or 
 indorsed (n). The re-exchange is ascertained by proof 
 of the sum for which a sight bill (drawn at the time and 
 place of dishonour at the then rate of exchange on the 
 place where the drawer or indorser sought to be charged 
 resides) must be drawn in order to realize at the place 
 of dishonour the amount .of the dishonoured bill and the 
 expenses consequent on its dishonour (o) . The expenses 
 
 see eontra, per Mathew, J., in Banque Populaire de Bienne v. Cave 
 (1895), I Com. Cas. 67, 69. 
 
 (t) Cf. Re Commercial Bank of South Australia (1887), 36 Ch. D. 
 at p. 538; Daniel, §§ 1444 — 1452; see the theory of re-exchahge 
 explained by Sup. Court of TJ. S. in Bamh of United States v. United 
 States (1844), 2 Howard, at p. 737. 
 
 (K) Re Commercial Bank of South Australia (1887), 36 Oh. D. 522. 
 
 (Z) Napier v. Schneider (1810), 12 Bast, 420; Woolsey v. Crawford 
 (1810), 2 Camp. 445; Dawson v. Morgan (1829), 9 B. &0. at p. 620. 
 
 (m) Ex parte Robarts (1886), 16 Q. B. D. 702; affirmed 18 Q. B. D. 
 286, C. A.; Re General South American Co. (1877), 7 Ch. D. 637; 
 Pothier, No. 117; Story, § 398; unless the cases be explained as 
 resting on the special contract between drawer and drawee. This 
 might reconcile the decisions, but does not appear to be the ground 
 of decision. ' 
 
 (») Cf. Willans v. Ayers (1877), 3 App. Oas>. at p. 146, P. C; and 
 see Mellish v. Simeon (1794), 2 H. Bl. 378 (cumulative re-exchange 
 against drawer) ; Suse v. Pompe (1860), 8 C. B. N. S. 538, see at 
 pp. 566, 567; French Code, Arts. 177—186. 
 
 ■ (o) De Tastet v. Baring (1809), 11 East, at p. 269; Suse v. Pompe 
 (1860), 8 C. B. N. S. at pp. 566, 567 ; German Exchange Law, Art. 50. 
 
Liabilities of Parties. 221 
 
 consequent on dishonour are the expenses of protest, § 57- 
 postage, customary commission and brokerage, and, when 
 a re-draft is drawn, the price of the stamp (p) . 
 
 The holder may recoup himself by drawing a sight bill 
 for such sum on either the drawer or one of the indorsers. 
 Such bill is called a " re-draft." The indorser who pays 
 a re-draft may in like manner draw upon the antecedent 
 party (q). For example: — A., in England, draws a bill 
 for 100L on B. in Calcutta, payable there at a rate of ex- 
 change indorsed thereon. This entitles the holder to 
 receive (say) Rupees 1000. The bill is dishonoured, and 
 the expenses of protest, &c. come to Es. 10. The holder 
 is then entitled to Us. 1010 in Calcutta. At the time of 
 dishonour sight bills on England are at 5 p. c. discount. 
 Accordingly a sight bill on England for 10GI. Is., would 
 realize in Calcutta Us. 1010. The holder may either 
 draw a sight bill on A. for 106L Is., and thus recoup 
 himself, or he may sue A. in England for 105?. and 
 interest, and 11. Is. expenses. 
 
 A custom according to which the holder may recover 
 either the sum he gave for the bill or the re-exchange, at 
 his option, is invalid (r) ; but a custom according to which 
 a fixed rate of damages is substituted for re-exchange 
 is probably valid (s) . In some countries a fixed rate is 
 provided for by statute (£). 
 
 The term "re-exchange" is used to signify (1) the 
 amount of a re-draft, (2) the loss on a particular trans- 
 action occasioned by the exchange being adverse, (3) the 
 course of exchange itself, or (4) the right to the sum 
 which would be secured, by a re-draft; so the context 
 must always be looked to. When English law governs, 
 the right to re-exchange arises on dishonour by non- 
 acceptance, as well as ,on non-payment (u) . Under most 
 continental codes it only arises on dishonour by non- 
 
 (p) Be Commercial Bank of South Australia (1887), 36 Ch. D. at 
 p. 528. 
 
 (q) Cf. Mellish v. Simeon (1794), 2 H. Bl. 378; Suae v. Pompe 
 (1860), 8 C. B. N. S. at p. 565; French Code, Art. 178; German 
 Exchange Law, Art. 53. 
 
 (r) Suse v. Pompe (1860), 8 C. B. N. S. 538. 
 
 (s) Willans v. Ayers (1877), 3 App. Caa. at p. 144, P. O. 
 
 (f) Tobago, for example. See Ex parte Bobarts (1886), 18 Q. B. D. 
 286, C. A. 
 
 («) Cf. Suse v. Pompe (1860), 8 C. B. N. S. at p. 566. 
 
222 Bills of Exchange Act, 1882. 
 
 §67. payment. For the reason, see ante, p. 161. See the 
 subject of re-exchange carefully worked 1 out, German 
 Exchange Law, Arts. 49—54; French Code, Arts. 177— 
 186; Nouguier, §§ 1336—1366. ' 
 
 Control over 
 interest. 
 
 (3) Where by this Act interest may be re- 
 covered as damages, such interest may, if 
 justice requires it, be withheld wholly or in 
 part (a;), and where a bill is expressed to be 
 payable with interest at a given rate, interest 
 as damages may or may not be given at the 
 same rate as interest proper (y). 
 
 For example, if a Valid tender has been made, interest 
 might be withheld from date of tender, and if present- 
 ment for payment was delayed interest might be dis- 
 allowed (z). As to interest reserved by the bill itself, 
 see sect. 9 (1), ante. Interest by way of damages is 
 usually given at the rate of 5 per cent. (u). 
 
 Transferor by 5g. Q) Where the holder of a bill payable to 
 
 delivery and . . . . . 
 
 transferee. bearer negotiates it by delivery without indorsing 
 it, he is called a " transferor by delivery." 
 
 See holder defined by sect. 2, ante; bill payable to 
 bearer by sect. 8 (3), ante; and negotiation by sect. 31, 
 ante. When a bill is transferred by delivery, the trans- 
 
 (s) See rate reduced. Ward v. Morrison (1842), Car. & M. 136; 
 and see per Cotton, L. J., in Webster v. British Empire Co. (1880), 15 
 Ch. D. at pp. 175, 176. 
 
 (y) Keene v. Keene (1857), 3 C B. N. S. 144; cf. Ackermann v. 
 Ehrensperger (1846), 16 M. & W. at p. 103; Lain? v. Stone (1828), 
 2 M. & Ey. 562. 
 
 (2) Dent v. Dunn (1812), 3 Camp. 296 (tender); see, further,, 
 Murray v. East India Co. (1821), 5 B. & Aid. 204 (holder dead and 
 no demand of payment made) ; Phillips v. Franklin (1820), Gow, 196 
 (bill payable at particular place, and no demand there proved); cf. 
 Barm v. Dalzell (1828), M. & M. 228. 
 
 (a) Re Commercial Bank (1887), 36 Oh. D. at p. 529; Keene v. 
 Keene (1857), 3 C. B. N. S. 144; as to claiming interest in specially 
 indorsed writ on pleadings, see Bullen and Leake, ed. 8, p. 80. 
 
Liabilities of Parties. 228 
 
 action is frequently spoken of in the cases as a sale of the § 68. 
 bill. In mercantile phraseology sale has a different mean- ~~ 
 ing, see ante, p. 98. 
 
 (2) A transferor by delivery is not liable on Notiiabieon 
 
 ,i . , / t \ ' instrument. 
 
 the instrument (o). 
 
 Further, a transferor by delivery is not liable on the 
 consideration in respect of -which he has transferred the 
 bill, if the bill be dishonoured (c), unless (1) the bill was 
 given in respect of an antecedent debt (d), or (2) it appears 
 that the transfer was not intended to operate in full and 
 complete discharge of such liability (e). 
 
 The transferee, in order to avail himself of the above 
 exceptions, must use reasonable diligence in endeavouring 
 to obtain payment, and; in giving notice of dishonour or 
 repudiating the transaction (/). For example: — 
 
 1. D., the holder of a bill for 1001., which has heen 
 indorsed in blank, discounts it with a banker for 901. 
 without indorsing it. The bill is dishonoured. D. is not 
 liable to refund the 90Z. (g). 
 
 2. D. changes a banker's note or cashes a cheque pay- 
 able to bearer for the convenience of the holder. If the 
 bank has stopped payment, or the cheque is dishonoured, 
 D . can recover the money (h) . 
 
 (3) A transferor by delivery who negotiates a Warranty by 
 bill thereby warrants to his immediate transferee 
 
 s ~ ~ 
 
 (b) Ex parte Roberts (1798), 2 Cox, 171; Fenn v. Harrison (1790), 
 3 T. R. 757; see also sect. 23. 
 
 (c) Read v. Hutchinson (1813), 3 Camp. 352; cf. Van Wart v. 
 Woolley (1824), 3 B. & C. at p. 445, Abbott, C.J.; Evans v. Whyle 
 (1829), 5 Bing. 485. 
 
 (d) Ward v- Evans (1703), 2 Ld. Raym. at p. 930; cf. Oamidge v. 
 Allenby (1827), 6 B. & C. at p. 382, Bayley, J.; but qu. if this 
 exception now applies to bank notes; Guardians of Lichfield v. Greene 
 (1857), 26 L. J. Ex. at p. 142. 
 
 (e) Van Wart v. Woolley (1824), 3 B. & C. at p. 446, Abbott, O.J. 
 (/) Rogers v. Longford (1833), 1 Cr. & M. 642; Moule v. Brown 
 
 (1838), 4 Bing. N. C. 266; Robson v. Oliver (1847), 10 Q. B. 704. 
 
 (g) Bank of England v. Newman (1700), 1 Ld. Raym. 442. 
 
 (h) Turner v. Stones (1843), 1 D. & L. 122, note; Woodland v. 
 Fear (1857), 26 L. J. Q. B. 202; cf. Timmins v. Gibbins (1852), 18 
 Q. B. 722 (notes paid into a bank and credited to customer). 
 
224 Bills of Exchange Act, 1882. 
 
 § 68. being a holder for value that the bill is what it 
 purports to. be (i), that he has a right to transfer 
 it(k), and that at the time of transfer he is not 
 aware of any fact which renders it valueless (I). 
 
 Illustrations. 
 
 1. 0. discounts with. D. a bill payable to bearer without indors- 
 ing it. It turns out that, unknown to 0., the amount of the bill 
 had been fraudulently altered by a previous holder. D. oan 
 recover from 0. the money he paid (m). 
 
 2. A bill broker discounts with a bank a bill indorsed in blank 
 by the payee. The indorser absconds, and the signatures of the 
 drawer and acceptor turn out to be forgeries. The bank can 
 recover the money they paid from the bill broker (ra) . 
 
 3. , An agent gets a bank to discount a bill drawn and indorsed 
 in blank by his principal, and then pays over the money to his. 
 principal. The signature of the acceptor was a forgery, but the 
 agent did not know it. The drawer fails. The bank cannot 
 recover from the agent (o) . 
 
 4. The bond fide holder of a bill purporting to be drawn by A., 
 accepted by B., and indorsed in blank by 0., discounts it with a 
 banker. It turns out that the signatures of A. and B. were 
 forgeries, and that 0., whose indorsement was genuine, is in- 
 solvent. The banker can recover from the holder the money he 
 paid(p). 
 
 When the transferee discovers the defect in the bill, he 
 must repudiate the transaction with reasonable dili- 
 gence (q). 
 
 There is some confusion in the cases owing to the dis- 
 tinction between the warranty of genuineness and the 
 liability on the consideration having been lost sight of. 
 The warranty of genuineness is an incident of the contract 
 
 (0 Gompertz v. Bartlett (1853), 23 L. J. Q. B. 65 (bill void for 
 want of stamp); of. Pooley v. Brown (1862), 31 L. J. C. P. 134; 
 Leeds Bank v. Walker (1883), 11 Q. B. D. 84 (altered bank note). 
 
 (fc) Story on Promissory Notes, § 118, no English decision. Cf. 
 New York Negotiable Instruments Law, § 115. 
 
 (V) Cf. Fenn v. Harrison (1790),. 3 T. B. at p. 759; Delaware Bank 
 v. Jervis (1859), 20 New York B. 228; Bridge v. Batchelor (1864), 91 
 Massachus. B. 394. 
 
 (ni) Jones v. Byde (1814), 5 Taunt. 488; cf. Burchfield v. Moore 
 (1854), 23 L. J. Q. B. 261. , 
 
 (n) Fuller v. Smith (1824), E. & M. 49. 
 
 (o) Ex -parte Bird (1851), 4 De Gr. & S. 273. 
 
 (p) Qurney v. Womersley (1854), 24 L. J. Q. B. 46; Merriam v. 
 Wolcott (1861), 85 Massachus. B. 258. 
 
 (?) Pooley v. Brown (1862), 31 L. J. C. P. 134. 
 
Liabilities of Parties. 225 
 
 of sale, and it is immaterial whether the thing sold be a § 68. 
 
 hill or any other personal chattel. The transferor is for " 
 
 this purpose an ordinary vendor (r) . In New York the 
 warranty is more extensive than in England. The 
 transferor of a note warrants the solvency of the maker at 
 the time of transfer (s) . The holder of a bill who pre- 
 sents it for payment, though he parts with the hill and 
 gets the money, is not in the position of a vendor. He 
 does not guarantee the genuineness of the instrument (t). 
 
 Accomodation Party and Pqrson Accommodated. 
 
 When a person draws, indorses, or accepts a bill for the Contract of 
 accommodation of another, the person accommodated im- indemnity °» 
 pliedly engages (a) that he will provide funds for the tTonbrn^' 
 payment of the bill at maturity; (b) that if, owing to his 
 omission so to do, the accommodation party is compelled 
 to pay the bill, he will indemnify that party (w). For 
 example : — 
 
 1. B. accepts a bill to accommodate the drawer. The 
 drawer sends funds to B. to, provide for the bill, but 
 becomes bankrupt before the bill matures. B. can retain 
 those funds to pay the bill with (x) . 
 
 2. A. signs a bill as drawer to accommodate the ac- 
 ceptor. It is dishonoured. A. receives no notice of dis- 
 honour, but nevertheless pays half the amount of the bill 
 to the holder. A. cannot, it seems, recover this sum from 
 the acceptor, for he has not paid under compulsion {y) . 
 
 3. B. accepts a bill to accommodate the drawer, but is 
 not provided with funds to pay it. There is some prima 
 facie defence against the holder. B. is sued, defends the 
 action, and has to pay the amount of the bill and oosts. 
 B. can recover from the drawer the amount he paid, 
 including the costs of defending the action (z) . 
 
 O) Meyer v. Richards (1895), 165 N. S. R. at p. 405, Sup. Ct. 
 U. S., reviewing English and American cases. 
 
 (s) Roberts v. Fisher (1870), 43 New York R. 159; cf. New York 
 Negotiable Instruments Law, § 115, and notes in Crawford's edition. 
 
 (if) Guarantee Trust Co. of New York v. Hannay (1918), 23 Oom. 
 Cas. 399, 402, O. A.; (1918) 2 K. B. 623, 631, 0. A. 
 
 (u) Reynolds v. Doyle (1840), 1 M. & Gr. 753; Sleigh v. Sleigh 
 (1850), 5 Exch. at pp. 516, 517, Parke, B.; cf. Hawley v. Beverley 
 (1843), 6 M. & Gr. at p. 227; Asprey v. Levy (1847), 16 M. & W. 851. 
 
 (x) Yates v. Boppe (1850), 19 L. J. C. P. 180. 
 
 (y) Sleigh v. Sleigh (1850), 5 Exch. 514; but see Ex parte Bishop 
 (1880), 15 Ch. D. at pp. 410, 417, O. A. 
 
 (z) Stratton v. Mathews (1848), 3 Exch. 48; Baker v. Martin 
 
 c. 15 
 
226 Bills op Exchange Act, 1882. 
 
 § 58- 4. A bill for 200L, drawn abroad, is accepted for the 
 
 " accommodation of tbe first indorser. Acceptor and in- 
 dorser fail. The bolder gets l'OOZ. from the acceptor and 
 100L from the indorser. The indorser's estate pays 15s. 
 in the pound. The acceptor, in proving on the contract of 
 indemnity against the indorser, can get 501., which makes 
 the total amount paid by the indorser on the bill (150L) 
 to be at the rate of 15s. in the pound (a). 
 
 See accommodation bill and accommodation party de- 
 fined', ante, pp. 101, 102. An aooamlmtodation party who is 
 compelled to pay the billhas all the rights of an ordinary 
 surety in such case, e.g., he is entitled to the benefit of 
 all securities held by the creditor (&). The Statute of 
 Frauds does not require the contract of indemnity 
 which arises out of an accommodation transaction to be 
 in writing (c) . 
 
 Where two or more persons become parties to a bill to 
 accommodate some third party, their rights and liabilities 
 between themselves are those of oo-sureties, and must be 
 determined irrespective of the position of their names on 
 the instrument (d). For example: — A bill is drawn by 
 one person and indorsed by another for the accommodation 
 of the acceptor. The drawer has to pay the bill. He can 
 sue the indorser for contribution as a co-surety, though 
 he could not sue him on the bill (e) . It is conceived 
 that there is nothing in this rule inconsistent with the 
 decision of the House of Lords in Steele v. M'Kirilay (/), 
 which merely decided that the drawer could not sue the 
 indorser on the bill. The drawer there never suggested 
 that he was entitled to contribution from the indorser as 
 a co-surety. 
 
 (1848), 3 Barb. 634, New York, accommodation indorser; cf. Bagnall 
 v. Andrews (1830), 7 Bing. at p. 222; Garrard v. Cottrell (1847), 10 
 Q. B. 679. Aliter if the action be defended without reasonable cause; 
 Roach v. Thompson (1830), M. & M. 487; Beech v. Jones (1848), 5 
 C. B. 696. 
 
 (a) Ex parte European Bank (1871), L. E. 7 Ch. 103. 
 
 (6) Bechervaise v. Lewis (1872), L. R. 7 C. P. at p. 377; Gray v. 
 Seckham (1872), L. R. 7 Ch. 680. 
 
 (c) Batson v. King (1859), 4 H. & N. 739. 
 
 (d) Reynolds v. Wheeler (1861), 30 L. 3. C. P. 350; Macd'onald v. 
 Whitfield (1883), 8 App. Cas. 733, P. C. ; cf . Batson v. King (1859), 
 4H. &N. ait p. 741. 
 
 (e) Reynolds v. Wheeler (1861), 30 L. J. C. P. 350. 
 
 if) Steele v. M'Kinlay (1880), 5 App. Cas. 754; see, further, 
 sect. 56 and notes thereto, ante. 
 
Discharges. 227 
 
 §59. 
 Discharges. 
 
 [Discharge of Bill. — A bill is discharged when all rights of action 
 thereon are extinguished. It then ceases to be negotiable, and if it 
 subsequently comes into the hands of a holder in due course, he 
 acquires no right of action on the instrument (jr). 
 
 A right of action on a bill must be distinguished from a right of 
 action which a party to a bill may have arising out of the bill trans- 
 action, but wholly independent of the instrument. The former can 
 be transferred by negotiating the instrument, the latter cannot. The 
 former is extinguished by the discharge of the instrument, the latter 
 may or may not be so. For example, if one of three joint acceptors 
 pays a bill, it is discharged ; but he personally has a right of contribu- 
 tion from his co-acceptors Qi) . If an accommodation acceptor pays 
 a bill it is discharged, but he has a personal right of action for in- 
 demnity. If an acceptance be given for a debt, and the acceptance is 
 paid, both the debt and the bill are discharged. 
 
 Discharge of Parties. — Again, the discharge of a bill must be dis- 
 tinguished from the discharge of one or more of the parties thereto, 
 e.g., the acceptor may be discharged by a discharge in bankruptcy, 
 while the drawer and indorsers are only liberated to the extent of the 
 dividends or composition received by the holder (i); or a particular 
 indorser may be discharged by want of notice of dishonour, while the 
 drawer and other indorsers remain liable ; or, again, an indorser may 
 be discharged as regards a particular party, but not as regards sub- 
 sequent parties (&).] 
 
 59. (1) A bill is discharged by payment in Payment in 
 due course by or on behalf of the drawee or 
 acceptor (I). 
 
 "Payment in due course" means payment 
 made at or after the maturity of the bill to the 
 holder thereof in good faith and without notice 
 that his title to the bill is defective (m). 
 
 (g) Harmer v. Steele (1849), 4 Exch. 1, Ex. Ch.; Burchfield v. 
 Moore (1854), 23 L. J. Q. B. 261; cf. Burbridge v. Manners (1812), 
 3 Camp, at p. 194 (payment); Cundy v. Marriott (1831), 1 B. & Ad. 
 696 (stamp). 
 
 (h) Harmer v. Steele (1849), 4 Exch. at p. 14; see the converse, 
 Houle v. Baxter (1802), 3 East, 177. 
 
 (0 Re Joint Stock Discount Co. (1870), L. E.. 10 Eq. 11 ; Re Jacobs 
 (1875), L. B. 10 Ch. 211 (composition under Bankruptcy Act, 1869). 
 
 (K) Cf. O'Keefe v. Dunn (1815), 6 Taunt. 315; and sect. 48 (1). 
 
 (/) Morley v. Culverwell (1840), 7 M. & W. at p. 182, per 
 Parke, B. ; New York Negotiable Instruments Law, § 200. 
 
 hit) See holder denned by sect. 2; good' faith by sect. 90; and 
 defect of title by sect. 29 (2) ; see New York Negotiable Instruments 
 Law, § 148. 
 
 15 (2) 
 
228 Bills of Exchange Act, 1882. 
 
 § 59. No definition of payment is attempted, for " payment " 
 
 Payment in * 8 no ^ a technical term (n) . The holder of a bill is en- 
 due course, titled to receive money (cf. sects. 3 (1), and 17 (2)), but 
 when the time of payment comes he may, if he chooses, 
 receive satisfaction in any other form. Any satisfaction 
 which would operate as a discharge in the case of an 
 ordinary contract to pay money is equally effectual in the 
 case of a bill (o). Willes, J., seems to think this prin- 
 ciple hardly wide enough, having regard to the rule (sect. 
 62) that accord without satisfaction may in some cases 
 siumce(p); and note also sect. 63 (cancellation), and sect. 
 64 (alteration). 
 
 Completion of Payment. — Payment by a banker to a 
 private individual is complete, and the property in the 
 money passes to the payee, when the money is laid on the 
 counter (q) . As regards what constitutes complete and 
 irrevocable payment between banker and banker where 
 there is a clearing-house, see the special verdict in WaruHck 
 v. Rogers (r); where there is no clearing-house, see 
 Pollard v. Bank of England (s). 
 
 Proceeding for Costs. — Where the holder of a bill sues 
 concurrently two or more of the parties thereto and is 
 paid by one of them, he may still proceed against the 
 others for costs incurred (t). 
 
 Presumption of, Payment. — It seems that there is a 
 presumption of payment in the case of a bill or note 
 
 (n) See per Maule, J., Maittard v. Argyle (1843), 6 M. & Gr. at 
 p. 45; cf. Glasscock v. Balls (1889), 24 Q. B. D. at p. 16. 
 
 (o) See, e.g., cases discussed on this basis: Cripps v. Davis (1843), 
 12 M. & W. 159 (agreement to set off another debt) ; Sibree v. Tripp 
 (1846), 15 M. & W. 23 (negotiable bill for less amount); Ford v. 
 Beech (1848), 11 Q. B. 852, Ex. Ch. (agreement to suspend) ; Ansell 
 v. Baker (1850), 15 Q. B. 20 (merger); Belshaw v. Bush (1851), 11 
 C. B. 207 (bill of third party); Woodward v. Pell (1868), L. E. 4 
 Q. B. 55 (debtor taken in execution). As to payment in bonds, sea 
 Schroder's Case (1870), L. E. 11 Eq. 131. 
 
 (p) Cf. Cook v. Lister (1863), 32 L. J. C. P. at p. 126; Abrey v. 
 Crux (1869), L. E. 5 O. P. at p. 44. 
 
 (?) Chambers v. Miller (1862), 32 L. J. O. P. 30. 
 
 (r) Warwick v. Rogers (1843), 5 M. & G. 340; and London Bank- 
 ing Corp. v. Horsnail (1898), 3 Com. Cas. 105, as to "bankers' 
 payments." 
 
 (s) Pollard v. Bank of England (1871), L. E. 6 Q. B. 623. 
 
 (t) Randall v. Moon (1852), 21 L. J. C. P. 226, as explained by 
 Cook v. Lister (1863), 32 L. J. O. P. at p. 127; London and Sub. 
 Bank v. Walkinshaw (1871), 25 L. T. N. S. 704. 
 
Discharges. 329 
 
 which is twenty years old, quite apart from the Statute of § 59. 
 Limitations («). 
 
 Part payment of a bill in due course operates as a dis- Partpayment. 
 charge pro tanto (x). As to part payment by the drawer 
 or an indorser, see post, p. 233. Under the oontinentaiL 
 codes the holder cannot refuse part payment; but this is 
 clearly not English law. 
 
 Payment in order to operate as a discharge of the bill By whom 
 must be made by or on behalf of the drawee (w) or ac- payment must 
 
 . / n T7i i be made. 
 
 ceptor (z). For example: — 
 
 1. A bill is accepted by three joint acceptors (not 
 partners). One of them pays it at maturity. The bill is 
 discharged and cannot be again negotiated. It is imma- 
 terial that the acceptor who paid accepted the bill for the 
 accommodation of the other two (a) . 
 
 2. A bill accepted payable at a bank and indorsed Jn 
 blank by C. is sent to D. to collect. D. improperly dis- 
 counts 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. O. parts with the bill under 
 the impression that D. has paid it on behalf of the 
 acceptor. The bill is not discharged. D. can sue the 
 drawer (c). 
 
 4. A joint and several note is paid at maturity by one 
 of the makers. The note is discharged (d). 
 
 (w) Cf. Brown v. Rutherford (1880), 14 Ch. D. 687, O. A. 
 
 he) Graves v. Key (1832), 3 B. & Ad. 313; of. Cook v. Lister 
 (1S63), 32 L,. J. C. P. at p. 125, WiBes, J.; French Code, Art. 126; 
 German Exchange Law, Arts. 38, 39. 
 
 (y) Wilkinson v. Simson (1838), 2 Moore, P. C. at p. 287, Parke, B. 
 
 (z) Callow v. Lawrence (1814), 3 M. & S. at p. 97, Ld. Ellen- 
 borough; Jones v. Broadhurst (1850), 9 C. B. at p. 181, Cresswell, J. 
 
 (a) Harmer v. Steele (1849), 4 Bxoh. at pp. 13, 14, Ex. Ch.; cf. 
 Bartrum v. Caddy (1838), 9 A. & E. 275 (note on demand paid by 
 accommodation maker). 
 
 (&) Deacon v. Stodhart (1841), 2 M. & Gr. 317; Thomas v. Fenton 
 (1847), 5 D. & L. 28, see at p. 38; cf. Walter v. James (1871), 
 L. E. 6 Ex. 124; and sub-sect. (2). 
 
 (e) Lyon v. Maxwell (1868), 18 L. T. N. S. 28; and sub-sect. (2). 
 
 (d) Beaumont v. Greathead (1846), 2 C. B. 494. 
 
230 Bills of Exchange Act, 1882. 
 
 § 59. 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 (e). 
 
 By sect. 89, provisions as to the acceptor of a bill 
 apply, mutatis ■mutandis, to the maker of a note. Thus, 
 discharge of the instrument in Illustrations 1 and 4 would 
 not prejudice any right to contribution or indemnity 
 against the co-acceptors or co-makers, for such right is 
 independent of the instrument. Illustrations 2 and 3 ex- 
 emplify 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 
 sen etiam invitum soflrtemido lib&-<me posswrrms. 
 T ° m h ntmu8t Subject to the special provisions of the Act for the pro- 
 femade. tection of bankers (/), payment, in order to operate as a 
 
 discharge, imust be made to the holder, or some person 
 authorized to receive payment on his behalf (g) . 
 
 See " holder " defined by sect. 2, ante, and " good faith " 
 defined by sect. 90, post. For example: — 
 
 1. A bill is indorsed payable to John Smith or order. 
 Another person of the same name gets the bill and pre- 
 sents it. The acceptor pays him. The bill is not dis- 
 charged. The acceptor is still liable to the real John 
 Smith (A). 
 
 2. A bill indorsed in blank is stolen. The thief pre- 
 sents it to the acceptor at maturity, and obtains payment. 
 If the acceptor pays him in good faith the bill is dis- 
 charged, for the thief is the holder (*). 
 
 3. The indorsee of a bill has obtained it by fraud. He 
 
 O) Glasscock v. Balls (1889), 24 Q. B. D. 13, C. A. 
 
 (/) See sect. 60 (forged indorsement on demand drafts) ; sect. 80 
 (crossed cheques); and see sect. 72 (2) and notes as to conflict of 
 laws. 
 
 (^) Cf. sect. 45 (3), presentment for payment; Leftley v. Mills 
 (1791), 4 T. R. at p. 17S; Walker v. Macdonald (1848), 2 Bxch. at 
 p. 532; Robarts v. Tucker (1851), 16 Q. B. at p. 569, Ex. Oh.; 
 Pothier, Nos. 164 — 167; Nouguier, § 889. See also sect. 7 (3) and 
 sect. 24, ante. 
 
 (K) See sect. 24, and Graves v. American Sank (1858), 17 New 
 York E. 205; cf. McEntire v. Potter (1889), 22 Q. B. D. at p. 441. 
 
 (») Smith v. Sheppard (1776), cited. CUtty on Bills, 10th od. 
 
 P. 180, JUL. , 
 
Discharges. 231 
 
 presents it at maturity to the acceptor, who pays him in § 59. 
 
 good faith. The bill is discharged (k). 
 
 As to lost bills, see sect. 70, post ; and as to bills in sets, 
 see sect. 71 (5) and (6), post. Where a bill is held wrong- 
 fully the acceptor may set up the jus tertii (apite, pp. 62, 
 112) . If he only suspects that the bill is held wrongfully 
 he must act at his peril. 
 
 Holder's identity. — Under some continental codes, Holder's 
 when a bill is payable specially, and the holder is identity, 
 unknown to the payer, he is bound to give some proof of 
 identity: Nouguieir, § 896, and this appears to be the law 
 in the United States (?). In England, it is conceived 
 that possession is prima facie evidence of identity (m), 
 and that if the payer doubts the identity of the person pre- 
 senting, or the genuineness of the instrument, he must 
 pay or refuse payment 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 (n) : but having regard 
 to the duties of the holder this seems very questionable. 
 The usual practice is to offer to pay under an indemnity. 
 
 Payment, to operate as a discharge, must be made at At what time, 
 or after the maturity of the instrument (o). 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 (p). Premature payment, or any other pre- 
 mature 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 bill (q) . 
 
 2 . An accepted bill payable three months after date is 
 held by C . A month before it matures the acceptor pays 
 
 (Jc) Cf. Bobarts v. Tucker (1851), 16 Q. B. at p. 576. 
 
 (V) Daniel, § 1618. It certainly is the practice. 
 
 (m) Cf. Bulkeley v. Butler (1824), 2 B. & O. at p. 441, per 
 Bayley, J. 
 
 («) Bobarts v. Tucker (1851)j 16 Q. B. at p. 578; cf. Paget on 
 Banking, ed. i, p. 43. 
 
 (o) Burbridge v. Manners (1812), 3 Camp, at p. 194; Beaumont v. 
 Greathead (1846), 2 C. B. 494, note; French Code, Arts. 144—146, 
 
 (p) Morley v. Culverwell (1840), 7 M. & W. 174; see at p. 182, 
 Parke, B.; Attenborough v. Mackenzie (1856), 25 L.J. Ex. 244; cf. 
 German Exchange Law, Art. 10. 
 
 (#) Ibid. 
 
232 Bills of Exchange Act, 1882. 
 
 § 59. C, but C. retains the bill. The next day O. indorses it 
 
 * to D., who takes it for value and without notice of the, 
 
 payment. D. can sue the acceptor (r). 
 
 3. The acceptor of a bill settles with a drawer before 
 the bill matures. It turns out that the bill was out- 
 standing in the hands of a third party. The acceptor 
 must pay the holder, but can recover the amount from the 
 drawer as money paid to his use (s) . 
 
 Payment by (2) Subject to the provisions hereinafter con- 
 indOTser° r tained(tf), when a bill is paid by the drawer or an 
 indorser it is not discharged ; but 
 
 (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 («). 
 
 (b) 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{#). 
 
 Illustrations. 
 
 1. The acceptor of a bill, orignally 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 
 
 0) Cf . Dod v. Edwards (1827), 2 0. & P. 602 (premature release) 
 French Code, Art. 144; Cripps v. Davis (1843), 12 M. & W. 159 
 Ingham v. Primrose (18S9), 7 C. B. N. S. 82. 
 
 (s) Hawley v. Beverley (1843), 6 M. & G-r. 221. 
 
 (£) See sub-sect. (3) as to accommodation bills. 
 
 («) Cf. Williams v. James (1850), 15 Q. B. at p. 505. Aliter in 
 America if payee had indorsed in blank: Daniel, § 1240; Gardner v. 
 Maynard (1863), 89 Massachus. B. 456; cf. New York Negotiable 
 Instruments Law, § 202. 
 
 («) Jones v. Broadhurst (1850), 9 C. B. 173; Kemp v. Balls (1854), 
 10 Exch. 607; Woodward v. Pell (1868), L. E. i Q. B. 55; cf. New 
 York Negotiable Instruments Law, § 202. 
 
Discharges. 233 
 
 and the subsequent indorsements and again negotiate the bill § 59, 
 ^way(y). ? 
 
 2. The acceptor of a bill becomes bankrupt. 0., a holder of the J a y meilt h T 
 bill, who had indorsed it away before the bankruptcy., takes it up ia^ser^ 
 after the bankruptcy. C. can set off the bill against any claim 
 
 the acceptor's trustee may have against him (a). 
 
 3. The 0. 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 whether they 
 paid as the agents and bankers of the acceptor, or whether they 
 took up the bill as indorsiers. In the latter case it is not dis- 
 charged, and they can sue the drawer, or if he be a customer, 
 debit him with the amount of the bill (a) . 
 
 4. The indorser of a bill writes to the drawer promising to 
 "retire" it, and accordingly takes it up before maturity. The 
 hill is not discharged (6). 
 
 The House of Lords has held that the drawer or 
 indorser 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 dishonour of the bill (c) . Suppose the 
 drawer or indorser after payment again indorses the bill 
 away. Who would then 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 (d) ; provided that, when the 
 .acceptor of a bill becomes bankrupt, any payment made 
 -by the drawer or an indorser to the holder must be 
 
 (j/) Callow v. Lawrence (1814), 3 M. & S. 95; Hubbard v. Jackson 
 <1827), 4 Bing. 390; Elsworth v. Brewer (1831), 28Massaohus. E. 315. 
 
 (z) McKinnon v. Armstrong (1877), 2 App. Cas. at p. 539, H. L. 
 
 (a) Pollard v. Ogden (1853), 2 E. & B. 459. 
 
 (6) 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. E. 14 Eq. at p. 593. 
 
 (c) Duncan, Fox $ Co. v. N. # S. Wales Bank (1880), 6 App. Cas. 
 1, H. L. 
 
 (cT) Jones v. Broadhurst (1850), 9 C. B. at p. 183; Coo/c v. Lister 
 (1863), 32 L. J. C. P. at p. 127, Willes, J.; Thornton v. Maynard 
 (1875), L. E. 10 C. P. 695. See ante, p. 143, as to the effect 
 of this, if holder sues. 
 
234 
 
 Bills of Exchange Act, 1882. 
 
 § 59. deducted from the amount for which the holder is entitled, 
 to prove against the acceptor's estate (e). 
 
 The right of the holder to retain the bill when he haa- 
 been paid by the drawer or an indorser depends on the 
 arrangement between them (/). In France and other- 
 countries where the civil law is followed, payment by the 
 drawer or an indorser discharges the bill. See Pothier,. 
 No. 106. 
 
 Payment of (3) Where an accommodation bill is paid in 
 
 accommoda- v ' ., . 
 
 tion bill. due course by the party accommodated the bill is- 
 
 discharged. 
 
 Illustration. 
 
 A bill is accepted for the 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 (g) . 
 
 See note to sect. 28, defining " accommodation bill." 
 The discharge may be supported on the ground~adopted by 
 Willes, J., that the person accommodated pays as the- 
 acceptor's agent, or on the ground that the bill has been 
 paid hy the party ultimately liable. See post, p. 251, as 
 to principal and surety; and sect. 36 (2), ante, as to- 
 equities attaching to overdue bill. 
 
 Recovery 
 by payor of 
 . money paid 
 by mistake. 
 
 Recovery by Payor of. Money paid by Mistake. 
 
 Where payment of a bill or note is made by mistake to> 
 a person who is not entitled to receive payment, and who 
 
 (e) Ex parte Taylor (1857), 26 L. J. Bank. 58; Ex parte ■Maxoudotf" 
 (1868), L. R. 6 Bq. 582. 
 
 (/) Jones v. Broadhurst (1850), 9 C. B. at p. 183; of. Woodward v.. 
 Pell (1868), L. R. 4 Q. B. 55, as to a lien, for costs; and Dimoan,. 
 Fox i Co. v. N. § S. Wales Bank (1880), 6 App. Gas. at pp. 17, 18. 
 
 (g) Cook ». Lister (1863), 32 L. J. O. P. at p. 127, Willes, J.; 
 see also Lazarus v. Cowie (1842), 3 Q. B. 459, criticised but followed. 
 in Jewell v. Parr (1853), 13 C. B. 909, apparently approved, Parr v. 
 Jewell (1855), 16 C. B. 684, at p. 709, Parke, B., Ex. Oh.; Jones, v. 
 Broadhurst (1850), 9 C. B. at pp. 181 and 189; Ralli v. Dennistoun 
 (1851), 6 Exch. 483, 36th plea and judgment at p. 493; Strong v'. 
 Foster (1855), 17 C. B. at p. 222; Re Oriental Bank (1871), L. R. 
 7 Ch. at p. 102; New York Negotiable Instruments Law, §§ 200, 202- 
 
Discharges. 235 
 
 cannot give a discharge, the money so paid may be re- § 69. 
 
 covered back by the payor as follows: — 
 
 (1) The payor of a forged, altered, or cancelled bill, who 
 has been directly induced to pay it by the negli- 
 gence of his correspondent or customer, and has 
 not himself been guilty of negligence, can 
 recover the money so paid from such correspon- 
 dent or customer. For example: — 
 
 1 . A. draws a cheque on his bankers for 50£'., carelessly 
 leaving a blank space before the words and figures " fifty." 
 The holder fills it up as a cheque for 1501., and obtains 
 payment. The banker can charge A. with the amount so 
 paid (h). 
 
 2. A. draws in the ordinary way a cheque for 501. It is 
 altered to 1501. The alteration is not apparent. A.'s 
 banker pays it. He can only charge A. with 501. (*)„ 
 
 3. A cheque for 101. is drawn on a joint account by 
 three trustees. A space is left before the words and 
 figures " ten," and one of the trustees fraudulently fills it 
 up as a cheque for 110?., and gets the money. The bank 
 cannot charge the joint account with the 110/. (fc). 
 Sed qu. ? 
 
 4. A. draws a bill on B., and indorses it in blank. 
 Subsequently, intending to cancel it, he tears it into four 
 pieces and throws the pieces away. C. picks up the pieces, 
 pastes them together, and presents the bill to B. and 
 obtains payment. If the marks of cancellation are 
 apparent, B . cannot recover the money so paid from A . (I). 
 
 5. Bill accepted to accommodate the drawer. The 
 drawer having failed to discount it, the acceptor tears it 
 in half and throws the pieces into the street. The 
 drawer picks up the pieces in the acceptor's presence, and 
 afterwards joins them together, and negotiates the bill .^ 
 The bill looks as if it might have been divided for safer 
 
 (fi) Young v. Grote (1827), 4 Bing. 253. This case has continually 
 been criticised. See Illust. 3, and Seholfield v. Londesborough, (1895) 
 1 Q. B. 536, C. A.; and A. C, (1896) 514, H. L. But its authority 
 is now re-established by the House of Lords in London Joint Stock 
 Bank v. MaeMillan, (1918) A. C. 777. 
 
 (t) Hall v. Fuller (1826), 5 B. & C. 750. 
 
 (JcX Colonial Bank oj Australasia v. Marshall, (1906) A. O. 565, 
 P. C. ; criticised London Joint Stock Bank v. MaeMillan, (1918) 
 A. C. 777, H. L. 
 
 (I) Scholey v. fiamsbottow (1810). 2 Camp. 485; see ante, p. 106, 
 and sect. 63. 
 
236 Bills of Exchange Act, 1882. 
 
 § 59. transmission by post. The acceptor is (perhaps) liable to 
 a holder in due course (m) . 
 
 6 . A bill held under a forged indorsement is presented 
 to B. for acceptance. B. accepts it payable at his bankers. 
 The bankers pay it. They cannot charge B. with the 
 amount («). 
 
 The modern tendency was to minimise the effect of 
 negligence on the part of the customer or • corre- 
 spondent (©). But the House of Lords have now con- 
 firmed the old doctrine that the customer is bound to use 
 reasonable care, so as not to facilitate frauds on the 
 banker (p). 
 
 (2) A banker who, as drawee, pays a genuine cheque 
 
 held under a forged or unauthorized indorse- 
 ment, can recover the money so paid from 1 the 
 drawer or debit him with it in account (q) . 
 
 (3) The payor can recover the money paid' from the 
 
 person who received it when such person did not 
 act bond fide in demanding payment of the 
 
 bill (0- 
 
 (4) Subject to the provisions of the Act as to a collecting 
 
 banker in the case of a crossed cheque (s), the 
 payor can recover the money paid from the 
 person who received it when such person acted 
 bond fide in demanding payment of the bill, 
 provided (a) that the payor was not guilty of 
 negligence in making the payment, and (b) that 
 the position of the party receiving payment has 
 not been prejudiced before the discovery of 
 
 (m) Ingham v. Primrose (1859), 7 C. B. N. S. 82, often criticised, 
 but said by Collins, M.B., " to be sound in principle, if wrong on 
 the facts": Nash v. De Freville, (1900) 2 Q. B. 72, at p. 89. 
 
 («) Robarts v. Tucker (1851), 16 Q. B. 560, Ex. Ch.: cf. Vagliano's 
 Case, (1891) A. O. at pp. 117, 131. 
 
 (o) Cf. Kepitigalla and Rubber Estates Co. v. National Bank of 
 India, (1909) 2 K. B. 1010, 1025 (entries in pass-book); Colonial 
 Bank of Australasia v. Marshall, (1906) A. C. at p. 568, P. O. 
 
 (p) London Joint Stock Bank v. MacMillan, (1918) A. C. 777, 
 H. L. (altered cheque). 
 
 (?) Sect. 60, post, and 16 & 17 Vict. c. 59, § 19, post, p. 387. 
 (>•) Martin v. Morgan (1819), 3 Moore, 635; Kendal v. Wood 
 (1S71), L. R. 6 Ex. 243. 
 («) See sect. 82, post. 
 
Discharges. 237 
 
 the mistake and notification thereof (t). For §59. 
 example: — 
 
 1. A cheque is presented and paid. Directly after the 
 payment the bankers discover that the drawer's account 
 was overdrawn. They cannot recover the money so paid 
 from the holder of the cheque (u) . 
 
 2. A bill, purporting to be drawn by A. on B., is paid 
 by B. Subsequently B. discovers that A.'s signature was 
 a forgery. B. cannot recover the money from the bond 
 fide holder to whom he paid it (a;) . 
 
 3. C, the holder of a bill purporting to be accepted 
 payable at a bank, indorses it to D. for collection. D. 
 obtains payment, and hands the money over to 0. A 
 week after the payment the bank discovers that the 
 acceptance was a forgery. The bank cannot recover the 
 money from C. (y). 
 
 4. A bill, purporting to bear the indorsement of C, is 
 held by F. It is dishonoured. X. pays it supra protest 
 for C.'s honour. The same day he discovers that G.'s 
 indorsement was a forgery, and gives notice to F. X. can 
 (perhaps) recover the money from F (z) . 
 
 5. C 7 the indorser of a bill, pays D., the holder, in 
 ignorance that he has been discharged by D.'s omission to 
 
 'present it for payment. A week after he discovers this 
 fact. C. can recover the money he paid from 1 D. (a). 
 
 6. C. is the holder of a bill purporting to be accepted 
 by B., payable at his bankers. The 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 Money is placed in the hands of an agent to pay off 
 certain outstanding acceptances. X. falsely represents that 
 he holds one of these acceptances, and gets paid . Either 
 the agent or the principal can recover the money from 
 X- (c). 
 
 («) Kerrison v. Glyn, Mills # Co. (1911), 17 Own. Cas. 41, at 
 p. 54, H. L. 
 
 O) Cf. Chambers v. Miller (1862), 32 L. J. O. P. 30. 
 
 (m) Price v. Neal (1762), 3 Burr. 1355; cf. sect. 54 (2), ante. 
 
 Qy) Smith, v. Mercer (1815), 6 Taunt. 76. 
 
 (z) Wilkinson v. Johnson (1824), 3 B. & C. 428; but of. Phillips 
 v. im Thurn (1866), L. E. 1 C. P. 463. 
 
 (a) Milnes v. Duncan (1827), 6 B. & C. 671; of. Kelly v. Solari 
 (1841), 9 M. & W. at p. 59. 
 
 (5) Cocks v. Masterman (1829), 9 B. & O. 902. 
 
 (o) RoU v. Eley (1853), 1 E. & B. 795. , 
 
238 Bills of Exchange Act, 1882. 
 
 § 69. 8. A bill held by C, and purporting to be accepted by 
 
 B., is presented to B. for payment. B. inspects and pays 
 
 it. Subsequently he discovers that his signature was 
 forged . He cannot recover the money from 0. (d) . 
 
 9. A genuine bill fraudulently altered in amount from 
 10?. to 100L 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 (e). 
 
 10. The acceptor of a bill held under a forged indorse- 
 ment pays it on the 19th of August to a person who has 
 taken it in good faith and for value. The forgery is dis- 
 covered six weeks afterwards . The acceptor cannot recover 
 the money so paid (/) . 
 
 1.1 . A cheque fbr five dollars is taken by the drawer to 
 his bankers in Canada and certified by them. It is after- 
 wards fraudulently altered by the drawer to a cheque for 
 500 dollars, thereby largely overdrawing his account, and 
 negotiated to a holder in due course. The cheque is pre- 
 sented and paid. Next day the fraud is discovered, and 
 the bank give notice to the holder. The paying bank can 
 recover the 495 dollars from the holder (g) . 
 
 The reasons given for the decisions are very' conflicting. 
 Illustrations 2, 3, and 6 might well be supported on the 
 ground that the payor is bound to recognise the signature 
 of his own correspondent or customer, this being matter 
 peculiarly within his own knowledge. 
 
 The general rule of law is that when money has been 
 paid under a mistake of fact to a person who has received 
 it in good faith, it can be recovered back by the payor 
 unless and until the position of the party receiving it has 
 been altered. Mathew J. argues that in the case of a 
 bill or note the position of the holder is necessarily pre- 
 judiced if he has received the money and the mistake is not 
 immediately corrected. "When a bill becomes due and 
 is presented for payment the holder ought to know at once 
 whether the bill is going to be paid or not . If the mistake 
 
 (d) Mather v. Maidstone (1856), 18 C. B. 273, at p. 295. 
 
 (e) White v. Cent. Nat. Bank (1876), 64 New York R. 316; cf. 
 Burchfield v. Moore (1854), 23 L. J. Q. B. 261. 
 
 (/) London $ River Plate Bank v. Bank of Liverpool, (1896) 1 
 Q. B. 7. 
 
 (g) Imperial Bank of Canada v. Bank of Hamilton, (1903) A. O. 
 49, P. C. 
 
Discharges. 239 
 
 Is discovered at once it may be that the money can be § 59- 
 Tecovered back " (h). The Privy Council, in a later case, 
 say that the rule so stated must at any rate be confined 
 to the case of bills and notes on the dishonour of which 
 notice has to be given to some one, whether drawer or in- 
 dorser, who would be discharged unless the notice were 
 given in due time (i) . It is to be noted that a person 
 who in good faith presents a bill for payment does not 
 warrant its authenticity (k) . 
 
 The above rules do not affect the right of the true owner 
 • to recover the proceeds from the person who has wrongfully 
 received them by an action either for conversion or for 
 money had and received (I). 
 
 60. When a bill payable to order on demand (m) Banker 
 is drawn on a banker, and the banker on whom demand draft 
 it is drawn (n) pays the bill in good faith (o) and in Movement 
 the ordinary course of business, it is not incum- isfor s ea - 
 bent on the banker to show that the indorsement 
 ■of the payee or any subsequent indorsement was 
 made by or under the authority of the person 
 whose indorsement it purports to be, and the 
 
 (Ji) London $ River Plate Bank v. Bank of Liverpool, (1896) 1 
 Q. B. 7, at p. 11; criticised Daniel, ed. 5, § 1372. 
 
 (i) Imperial Bank of Canada v. Bank ef Liverpool, (1903) A. C. 
 49, at p. 58, P. C. For the general rule, see Kerrison v. Glyn, Mills 
 $ Co. (1911), 17 Com. Cas. at p. 54, H. L. 
 
 (Je) Guarantee Trust Co. of Sew York v. Hannay, (1918) 2 K. B. 
 623, at p. 631, C. A. 
 
 (Z) Ogden v. Benas (1874), L. R. 9 C. P. 513; Arnold v. Cheque 
 Bank (1876), 1 C. P. D. 578; Bobbett f. Pinkett (1876), 1 Ex. D. 
 368; cf. McEntire v. Potter (1889), 22 Q. B. D. at p. 441; Burn 
 v. Morris (1834), 4 Tyr. 485 (lost bank note); Morison v. Kemp 
 (1912), 29 T. L. R. 70 (cheque drawn " per pro." by fraudulent clerk, 
 and paid away for racing debt) ; Morison v. London County and' 
 Westminster Bank, (1914) 2 K. B. 356 (per pro. cheque); as to 
 money had and received, see Sinclair v. Brougham, (1914) A. C. at 
 p. 453, H. L. 
 
 (»») By sect. 73 a cheque is a bill. See sect. 10, denning what 
 bills are in legal effect payable on demand, and sect. 3, denning bill 
 of iexchange. 
 
 («) As to person acting in double capacity, e.g., as banker and as 
 treasurer to a board of guardians, see Halifax Union v. Wheelwright 
 (1875), L. R. 10 Ex. 183. 
 
 (o) See sect. 90, post, defining good faith. 
 
240 Bills of Exchange Act, 1882. 
 
 § 60. banker is deemed to have paid the bill in due 
 course (p), although such indorsement has been 
 forged or made without authority. 
 
 Illustrations. 
 
 1. A cheque is drawn payable to 0. or order. It is stolen, and 
 O.'s indorsement is forged by the thief. The bankers on whom it 
 is drawn pay it. They can debit the drawer's account with the 
 amount of the cheque (<?). 
 
 2. A cheque is drawn payable to O.'s order, and handed to an 
 agent of O.'s in payment of a debt due to 0. The agent, who has 
 no authority to indorse cheques, indorsee it for 0., signing "per 
 S. K., agent," obtains payment and keeps the money. The loss 
 falls on 0. He has no remedy against the drawer or the 
 bankers (»■) . 
 
 3. A crossed cheque payable to order is stolen from the payee. 
 The thief forges his indorsement, and the bank on which it is 
 drawn pays it in contravention of the crossing. The bank cannot 
 debit the drawer's account with the cheque (s). 
 
 4. The manager of a bank is appointed treasurer to a Board 
 of Guardians, and the terms of the arrangement are such as to 
 make the guardians' account practically an account with the 
 bank. Cheques drawn by the guardians on the treasurer are 
 cheques drawn on a banker within the meaning of this section (<). 
 
 This section constitutes an exception to sect. 24. It 
 does not protect the banker when the drawer's signature 
 has been forged (w) . The cases cited in the illustrations 
 were decided upon the Stamp Act, 1853 (16 & 17 Viet, 
 c. 59, § 19, post, p. 387), which is reproduced in this 
 section so far as it relates to bills or cheques. That enact- 
 ment, however, was not repealed, as it applies to certain 
 " drafts and orders," which are not bills as defined by 
 
 (p) As to effect of payment in due course, see sect. 59 (1). 
 
 (?) Cf. Charles v. Blaokwell (1877), 2 C. P. D. 151, at pp. 156, 
 157, C._ A. If the cheque were stolen before it left the drawer's 
 hands, it seems ho can recover the amount from the person who pre- 
 sented it: Ogden v. Benas (1874), L. R. 9 C. P. 513. 
 
 (»•) Charles v. Blaokwell (1877), 2 O. P. D. 151, C. A.; cf. Bissell 
 v. Fox (1885), 53 L. T. N. S. 193, C. A. 
 
 (s) Cf. Smith v. Union Bank (1875), L. R. 10 Q. B. at p. 296; 
 ibid. 1 Q. B. D. at p. 35, per Lord Cairns. Such payment would not 
 be " in the ordinary course of business." As to the payee's remedy, see 
 sect. 79 (2); and Bobbett v. Pinkett (1876), 1 Ex. D. 368, 372. 
 
 («) Halifax Union v. Wheelwright (1875), L. B. 10 Ex. 183, 193, 
 decided on 17 & 18 Viet. c. 59. 
 
 («) Cf. Orr v. Union Bank (1854), 1 Macq. H. L. Oa. 513. 
 
Discharges. 241 
 
 sect. 3 of the Bills of Exchange Act. It is to be noted that §60. 
 
 the 16 & 17 Vict. c. 59, was a Stamp Act which appeared 
 
 to apply only to inland bills. Possibly, therefore, sect. 19 
 does not cover the case of a draft drawn abroad (a;) . There 
 is no such limitation in the present section. 
 
 A draft drawn by one branch bank on another is not 
 a bill of exchange within the meaning of sect. 60 of the 
 Bills of Exchange Act, but it is a draft or order within 
 the meaning of 16 & 17 Vict. c. 59 (y). 
 
 The United States adhere to the common law rule, and 
 have no corresponding enactment. Under the continental 
 cedes generally the payor is not bound to verify the 
 genuineness of the indorsements, and in some countries 
 a bond fide holder can even make a good title through a 
 forged indorsement; see sect. 72 (2),- post, and notes 
 • thereto, as to the effect of this conflict of laws. 
 
 61. When the acceptor of a bill is or becomes Acceptor, 
 the holder of it at or after its maturity, in his own maturity? a * 
 right, the bill is discharged (s). 
 
 Illustrations. 
 
 1. A bill payable after date is accepted by three joint acceptors. 
 The holder indorses the bill before maturity to one of the 
 acceptors. If that acceptor retains the bill till it matures, it is 
 discharged (a) . 
 
 2. The maker of a note payable on demand dies, having! 
 appointed the holder as his executor. The note is not discharged 
 unless the holder has assets available for the payment of it (6) . 
 
 3. B. makes three notes payable to 0. or order, and subse- 
 quently gives 0. two more notes in substitution for the first 
 three, and to cover further advances. All the notes are payable 
 on demand, and were given on the understanding that they should 
 not be negotiated. 0. indorses all the notes to D. After 0. has 
 
 (x) But see Capital and Counties Bank v. Gordon, (1903) A. C. at 
 p. 251, per Lord Ltndley. 
 
 (y) Capital and Counties Bank v. Gordon, (1903) A. C. 240; 72 
 L. J. K. B. 4S1, H. L. But see Ross v. L. C. and Westminster Bank, 
 <1919) 1 K. B. 678. 
 
 (z) New York Negotiable Instruments Law, § 200. 
 
 («) Harmer v. Steele -(1849), 4 Exch. 1, Ex. Ch.; but this does 
 not prejudice his right to contribution: ibid, at p. 13; cf. Mainwaring 
 y. Newman (1880), 2 B. & P. 120; Foster v. Ward (1883), 1 C. & E. 
 168, two firms with common partner; Neale v. Turton (1827), 4 Bing. 
 149; see, too, Richards- v. RicMrds (1831), 2 B. & Ad. 447, before the 
 Married Women's Property Acts. 
 
 (6) Lowe v. Peskett (1855), 16 C. B. 500; and qu. now in any case? 
 
 c. 16 
 
242 Bills of Exchange Act, 1882. 
 
 § 61. indorsed the notes, B. pays 0. the amount due on the last two 
 
 notes. Afterwards C. obtains the five notes from D. by fraud, 
 
 ana hands, them to B., the maker. D. can recover from B. on 
 these five notes (c). 
 
 As to "discharge," see ante, p. 227. At oamimon law, 
 if the acceptor or maker became the administrator of the 
 holder, the bill or note was not discharged (df) ; but if he 
 became the executor of the holder, it was discharged (e). 
 ; Probably the words "in his own right" in the section 
 negative the common law rule as' to executors; cf . sect. 
 37, ante. 
 
 The rule stated in the section is a deduction from the 
 general principle that a present right and liability united 
 in the same person cancel each other: " There is no 
 principle," says Best, C.J., "by which a man can be at 
 the same time plaintiff and defendant" (/). This mode 
 of discharge is called in the civil law confusio, and is recog- 
 nised in all countries whose law is founded on civil law: 
 see, e.g., as to France, Nouguier, §§ 1061 — 1065. 
 
 wafvTor 62. (1) When the holder of a bill at or after 
 
 renunciation. ft s maturity absolutely and unconditionally re- 
 nounces his rights against the acceptor the bill is 
 discharged (g). 
 
 The renunciation must be in writing, unless 
 the bill is delivered up to the acceptor. 
 
 (2) The liabilities of any party to a bill may 
 in like manner be renounced by the holder before, 
 
 0) Nash v. De Freville, (1900) 2 Q. B. 72, C. A. 
 
 (<Z) Williams on Executors, 7th ed. p. 1313. 
 
 (e) FreaUey v. fox (1829), 9 B. & C. 130 ; though he had to .account 
 for this amount as assets: Williams on Executors, 7th ed. pp. 1310 — 
 1315. 
 
 (/) Neale v. Turton (1827), 4 Bing. at p. 151, drawer suing on hill 
 accepted by firm of which he was a member; but the rule no longer 
 applies as between a partner and his firm, or two firms with a looonmon 
 partner, since the Judicature Acts. See R. S. C. Order 48, rule 10. 
 
 (g) Dingwall v. Dunster (1779), 1 Dougl. 247, Lord Mansfield; 
 cf. Cook v. Lister (1863), 32 L. J. O. P. ab p. 126, per Willea, J.j 
 Pothier, Nos. 175—183. 
 
Discharges. : 243 
 
 at, or after its maturity (h), but nothing in this § 62. 
 section shall affect the rights of a holder in due 
 course without notice of the renunciation (?')• 
 
 Illustrations. 
 
 1. The holder of a bill at maturity tells the acceptor that he 
 renounces all claims against him, and gives up the bill to him. 
 The bill is discharged (k). 
 
 2. The holder of a bill before it matures writes to the first 
 indorser that he renounces all claim against him. The first and 
 subsequent indorsers are discharged as regards such holder. The 
 drawer and acceptor are not (I). 
 
 3. The holder of a bill verbally agrees with the; drawer that he 
 will not exercise his right of recourse against him if a certain 
 event takes place. The event happens. The drawer is not dis- 
 charged, for this is merely an oral agreement to vary the effect of 
 a bill as drawn, and not an absolute waiver of the drawer's 
 liabilities (m) : 
 
 4. The holder of a note payable on demand, being in a dying 
 state, says that he wishes to forego the debt, and by his directions 
 a memorandum is drawn up to the effect that the note is to be 
 destroyed as soon as it can be found. This is only the expression 
 of an intention to cancel it, and does not operate as a renun- 
 ciation (tj). 
 
 5. B. makes a note in favour, of 0., who has lent him money. 
 C. afterwards hands the note to X., who is a devisee under B.'s 
 will, and verbally renounces his rights. This is not a dis- 
 charge (o). 
 
 6. B. makes a note in favour of C, who advances him 500?. 
 Afterwards, at the request of B., C. writes to X. saying that the 
 advance was "a gift absolutely." This discharges the note, and 
 C.'s executors cannot enforce it(p). 
 
 (K) Foster v. Dawber (1851), 6 Exch. 839, at pp. 851, 852, 
 Parke, B.; Pothier, Nos. 175—183. 
 
 (i) See "holder in due course " define^ by sect. 29; and see Ingham. 
 v. Primrose (1859), 7 C. 3. N. S. 82; and New York Negotiable 
 Instruments Law, § 203. 
 
 (A-) Whatley v. Tricker (1807), 1 Camp. 35, and Foster v. Dawber, 
 supra. 
 
 (Z) Pothier, Nos. 182, 183; Nouguier, §§ 1048, 1049; cf. De la 
 Torre v. Barclay (1814), 1 Stark. 7. 
 
 (m) Ahrey v. Crux (1869), L. B. 5 O. P. 37. 
 
 (») Pie George, Francis v. Bruce (1890), 44 Ch. D. 627; cf. Smith 
 v. Gordon (1883), 1 C. & E. 105, before the Act. 
 
 (o) Edwards v. Walters, (1896) 2 Ch. 157, C. A. AUter probably 
 if X. had been an executor, not a devisee. 
 
 (p) Re Dickinson (1909), 101 L. T. N. S. 27. 
 
 16(2) , 
 
244 Bills op Exchange Act, 1882. 
 
 § 62. .'The words requiring the renunciation to be in writing 
 ~ were added in committee. They alter the English law, 
 but bring it into accordance with Scottish law. At com- 
 mon law a contract cannot be discharged by accord 
 without satisfaction. The special rule as to bills and 
 notes partially reproduced in this section seems to have 
 been -consciously imported into the law merchant from 
 French law(g). This mode ,of discharge is known in 
 France as "remise volontaire," and is recognised in 
 countries where the civil law is followed : see Nouguier, 
 §§ 1043—1052. 
 
 Cancellation. (53 # (1) Where a bill is intentionally cancelled 
 by the holder or his agent, and the cancellation is 
 apparent thereon, the bill is discharged. 
 
 (2) In like manner any party liable on a bill 
 may be discharged by the intentional cancellation 
 of his signature by the holder or his agent. In 
 such case any indorser who would have had a 
 right of recourse against the party whose signa- 
 ture is cancelled is also discharged (r). 
 
 Illustrations. 
 
 1. The holder of a bill strikes out the acceptor's signature, 
 intending' to cancel it. This is. a waiver of the acceptance, and 
 discharges the bill («). Aliter if the cancellation be not apparent, 
 and the bill be negotiated to a holder for value before 
 maturity (t). 
 
 2. B. accepts the first part of a foreign bill drawn in a set of 
 two, and sends it, as directed, to a bank to be. held at the. dis- 
 position of the holder of the second. The drawer, who is the 
 holder of the second part, failing to discount it, cancels it, and 
 directs the bank to deliver up the first to B. B. gets the first 
 part, and canoels his acceptance. B. is discharged, and if the 
 drawer subsequently issue a fresh second part, the holder cannot, 
 sue B. (w). 
 
 (?) See per Parke, B., in Foster v. Datvber (1851), 6 Exch. at 
 p. 852. 
 
 (r) Cf. New York Negotiable. Instruments Law, §§ 200, 201. 
 
 (s) Cf. Sweeting v. liaise (1829), 9 B. & C. at p. 369: Yglesias v. 
 River Plate Bank (1877), 3 C. P. D. 60. 
 
 (t) Ingham v. Primrose (1859), 7 C. B. N. S. 82, and ante, p. 106. 
 
 («) Malli v. Dennistoun (1851), 6 Exch. 483. 
 
Discharges. 2145 
 
 3. An agent is employed to collect a dishonoured bill. The § 63. 
 
 acceptor offers to pay the amount without charges. The agent — 
 
 sends on this offer to his principal, but allows the bill to be 
 cancelled before the offer is accepted. The principal refuses to 
 agree to the offer. The agent is liable for any loss consequent on 
 the unauthorized cancellation (a;). 
 
 (3) A cancellation made unintentionally, or 
 under a mistake, or without the authority of the 
 holder, is inoperative; but where a bill or any 
 signature thereon appears to have been cancelled 
 the burden of proof lies on the party who alleges 
 that the cancellation was made unintentionally, 
 or under a mistake, or without authority (y). 
 
 64. (1) Where a bill or acceptance is mate- Alteration 
 rially altered without the assent of all parties ° 
 liable on the bill, the bill is avoided [z), except as 
 against a party who has himself made, authorized, 
 or assented to the alteration, and subsequent 
 indorsers(^). 
 
 Provided that where a bill has been materially 
 altered, but the alteration is not apparent, 
 and the bill is in the hands of a holder in due 
 course (b), such holder may avail himself of 
 
 (x~) Bank of Scotland v. Dominion Bank, (1891) A. C. 592, H. L. 
 
 (y) Eaper v. BirJebeck (1812), 15 East, 17, acceptance cancelled by 
 referee in case of need; Wilkinson v. Johnson (1824), 3 B. & C. 428, 
 indorsements cancelled by payor for honour; Novelli v. Rossi (1831), 
 2 B. & Ad. 757, acceptance cancelled by bank where payable; approved 
 Castrique v. Imrie (1870), L. B. 4 H. L. 435; Warwick \. Rogers 
 (1843), 5 M. & Grr. 340 and 373, acceptance cancelled by bank where 
 payable; Prince v. Oriental Bank (1878), 3 App. Cas. 325, P. O., 
 note cancelled by maker's banker. And so, too, in Scotland, Dominion 
 Bank v. Anderson (1888), 15 Sess. Cas. 408; of. New York Negotiable 
 Instruments Law, § 204. 
 
 (z) Master v. Miller (1793), 1 Smith, L. C. ed. 12, p. 803, and 
 notes; Burehfield v. Moore (1854), 23 L. J. Q. B. 261. 
 
 («) Samelin v. Brack (1846), 9 Q. B. 306; cf. Langton v. Lazarus 
 (1839), 5 M. & W. 629. 
 
 (5) See " holder in due course " denned by sect. 29, ante. , 
 
246 Bills of ExphAnge Act, 1882. 
 
 § 64. the bill as if it had not been altered, and may- 
 
 enforce payment of it according to its origi- 
 nal tenour(c). 
 
 Illustrations. 
 
 1. A bill is accepted for 500?. 'The stamp is sufficient to cover 
 4,0002. After acceptance the drawer fraudulently alters the 
 amount to 3,5002., and the bill gets into the'hands of a holder in 
 due course. He can recover 5001. (d). 
 
 2." A cheque for 5 dollars is taken by the drawer to his bankers 
 in Canada, and certified by them. It is afterwards fraudulently 
 altered by the drawer to a cheque for 500 dollars, thereby largely 
 overdrawing his account, and negotiated to a holder in due course. 
 The cheque is presented and paid. Next day the fraud is dis- 
 covered, and the bank give notice' to the holder. The paying bank, 
 can recover the 495 dollars from the holder (e). 
 
 3. A cheque for 102. on a trust account is signed by three 
 executors, a space being left to the left of the words and figures. 
 One of the executors fraudulently alters the amount to 1102. , and 
 
 , gets the money. The bank cannot charge the trust account with 
 the 1102. (/). Sed quj 
 
 4. A partner in a firm draws a cheque, not filling in the amount 
 in words, but putting £2:0:0 intthe space for figures. A confi- 
 dential clerk misappropriates the cheque, writes " one hundred 
 
 .and twenty pounds " 'in the space for words, and alters the " 2 " 
 into 120. If the bank pays this cheque it can debit the firm's 
 account with 1202. (jr). 
 
 'The proviso was introduced in committee to mitigate 
 the rigour of the common law rule in favour of a holder 
 in due course. The proviso is not retrospective, and 
 does not apply to Bank of England notes (h) . At common 
 law a material alteration, by whomsoever made (i), avoided 
 and discharged the bill, except as against a party who 
 
 (c) New York Negotiable Instruments Law, § 205. 
 
 (d) Sclwlfield v. Londesborough, (1895) 1 Q. B. 536, C. A.; 
 affirmed (1896) A. C. 514, H. L. 
 
 (e) Imperial Bank of Canada v. Sank of Hamilton, (1903) A. C. 
 49, P.O. 
 
 (/) Colonial Bank of Australasia v. Marshall, (1906) A. O. 559, 
 P. C. ; criticised, and not followed, London Joint Stock Sank v. Mae- 
 Millan, (1918) A. C. 777, H. L. ■ 
 
 (g) London Joint Stock Bank v. MacMillan, (1918) A. C. 777, 
 H. L., overruling Courts below. 
 
 (A) Leeds Bank v. Walker (1883), 11 Q. B. D. 84. 
 
 (») See Davidson v. Cooper (1843), 11 M. & W. at p. 799; affirmed 
 13 M. & W. 343, alteration by stranger. It is the' duty of the holder 
 to preserve the instrument intact. 
 
Discharges. 247 
 
 made or assented to the alteration (k) . Thus where a bill § 64. 
 
 was altered by adding a place of payment without the —■ =- — 
 
 acceptor's consent, and was subsequently indorsed to a 
 holder in due course, it was laid down that the holder could 
 not sue the indorser on the bill, for the instrument was 
 discharged (Z). He could only sue on the consideration. 
 In America the rule was not quite so severe, and it was 
 held that an alteration by a stranger, Or, as it is called, 
 "an act of spoliation," did not avoid a bill (m). 
 
 By sect. 97 (3), post, the effect of the stamp laws is Effect of 
 expressly preserved, and this saving appears considerably BUm P lawB - 
 to cut down the effect of the proviso. Therefore, when any 
 question of alteration arises two points have to be con- 
 sidered, viz. (1) does the alteration avoid the bill under the 
 Act? (2) if not, does it avoid the bill under the stamp 
 laws, by making it a new instrument requiring a fresh 
 stamp? As regards the stamp laws, it is to be noted 
 (a) that a bill may be altered at any time before issue (n), 
 and for this purpose " issue " means the first delivery of a 
 bill to a person who takes it as a holder for value, so as to 
 be able to enforce payment thereof (o) ; (b) that a bill may 
 be altered for the purpose of correcting a mistake (p) and 
 bringing the instrument into accordance with the intention 
 of the parties at the time of issue (q) ; (c) that in any 
 case where an adhesive stamp may be used (r) the bill 
 may be re-«tamped, and that the alteration abroad of 
 a bill issued abroad does not affect it for stamp purposes 
 in England. Subject to these qualifications, a material 
 
 (Jc) JSamelin v. Bruch (1846), 9 Q. B. 306. 
 (0 Burchfield v. Moore (1854), 23 L. J. Q. B. 261. 
 (m) Parsons on Bills, vol. ii. p. 574; of. U. S. v. Spalding (1822), 
 2 Maaon, at p. 482, per Story, J. ; Dinsmore v. Duncan (1874), 57 New 
 York K. at p. 581. 
 
 (») Webber v. MaddocJcs (1811), 3 Camp. 1; Kennerly v. Nash 
 (1816), 1 Stark. 452; Downes v. Richardson (1822), 5 B. & Aid. 674; 
 Sherrington v. Jerrnyn (1828), 3 C. & P. 374; Wright v. Inshaw 
 (1842), 1 D. N. S. 802. 
 
 (o) Cardwell v. Martin (1808), 9 East, 190 ; Downes v. Richardson 
 (lb22), 5 B. & Aid. 674; Ex parte BignOld (1836), 1 Deao. at p. 735; 
 Scholfield v. Earl of Londesborough, (1894) 2 Q. B. 660. 
 
 (p) Cf. Ex parte White (1833), 2 Deac. & Ch. at pp. 358, 359; 
 Hamelin v. Bruch (1846), 9 Q. B. at p. 310; London and-Prov. Bank 
 v. Roberts (1874), 22 W. R. 402. 
 
 (§■) Brutt v. Picard (1824), E. & M. 37, date; Bradley v. Bardsley 
 (1845), 14 M. & W. 873; Byrom v. Thompson (1839), 11 A. & E. 31; 
 Cariss v. Tattersall (1841), 2 M. & Gr. 890. 
 (r) Stamp Act, 1891, s. 34, post, p. 399. 
 
2 * 8 Bills of Exchange Act, 1882. 
 
 § 64. alteration after issue renders the bill a new instrument 
 requiring a fresh stamp (s) . The Courts would look with 
 less favour on stamp objections than they did formerly, 
 and possibly some of the older cases may be open to re- 
 consideration. 
 
 What altera- 
 tions are 
 material. 
 
 (2) In particular the following alterations are 
 material, namely, any alteration of the date, the 
 sum payable, the time of payment, the place of 
 payment, and, where a bill has been accepted 
 generally, the addition of a place of payment 
 without the acceptor's assent (t). 
 
 Illustrations. 
 
 1. The following are material: — 
 
 A particular consideration is substituted for the words " value 
 received " (u) ; or the date of a bill payable at a fixed period after 
 date is altered, and the time of payment thereby postponed (x) or 
 accelerated (y) ; or a bill payable three months after date is 
 converted into a bill payable three months after sight (z) ; or 
 the date of a cheque or bill payable on demand is altered (a) ; or 
 the crossing of a cheque is altered (&); or the sum payable is 
 altered, e.g., from 1051. to 1001. (c); or the specified rate of 
 interest is altered, e.g., from 3 per cent, to *2| per cent, (d); or 
 a bill payable " with lawful interest " is altered by adding the 
 words "interest at six per cent." (e); or a particular rate of 
 exchange is indorsed on a bill which does not authorize this to 
 be done (/) ; or a joint note is converted into a joint and several 
 
 (s) Knill v. Williams (1809), 10 East, 431; cf. Sufiell v. Bank of 
 England (1882), 9 Q. B. D. at p. 574, per Cotton, L.J. 
 
 (<) Cf. New Tori Negotiable Instruments Law, § 206. 
 
 («) Knill v. Williams (1809), 10 East, 431 ; cf . Wright v. Inshaw 
 (1842), 1 D. N. S. 802. 
 
 (x) Outhwaitev. Luntley (1815), 4 Camp. 179; Hirschman v. Budd 
 (1873), L. R. 8 Ex. 171; Societe Generale v. Metropolitan Bank 
 (1873), 21 W. E. 335. 
 
 (jO Master v. Miller (1793), 1 Smith, L. O. ed. 12, p. 803; Walton 
 v. Hastings (1815), 4 Camp. 223, stamp. 
 
 (z) Long v. Moore (1790), 3 Esp. 155, n. 
 
 (a) Vance v. Lowther (1876), 1 Ex. D. 176. 
 
 (6) See sect. 78, overriding Simmonds v. Taylor (1858), 27 L. J. 
 C. P. 248. 
 
 (c) Cf. Hamelin v. Brwak (1846), 9 Q. B. 306. 
 
 Id) Sutton v. Toomer (1827), 7 B. & C. 416. 
 
 (e) Warrington v. Early (1853), 23 L. J. Q. B. 47. 
 
 (/) Hirschfield v. Smith (1866), L. B. 1 C. P. 340. 
 
Discharges. 249; 
 
 note (g) ; or a new maker is added to a joint and several note (h) ; § 64. 
 
 or the name of a maker of a joint and several note is cut off (i); . . 
 
 or intentionally erased (k); or the place of payment is altered, 
 e.g., a bill is accepted payable at X. & Oo.'s and Y. & Oo. is 
 substituted for X. & Oo. {I) ; or a place for payment is added 
 without the acceptor's consent (m) ; or the number on a Bank 
 of England note is altered (n). 
 
 2. The following are immaterial: — 
 
 A bill payable to C. or bearer is converted into a bill payable to 
 C. or order (o); or an indorsement in blank is converted into a 
 special indorsement (p); or the words "on demand" are added 
 to a note in which no time of payment is expressed (q) ; or a bill 
 addressed to Brown & Co., under the style of Brown, Smith & Co., 
 is accepted by them as Brown & Co., amd the address is afterwards 
 altered to make it correspond with the acceptance (r) ; or an 
 erroneous due date is added to a bill (s) ; or the words " or 
 order " are struck out by the acceptor in the case of a bill payable 
 to "D. or order" (if). 
 
 An alteration is material which in any way alters the 
 operation of the bill and: the liabilities of the parties, 
 whether the change be prejudicial or beneficial (u) ; and it 
 may be that even this test is not wide enough. "Any 
 alteration," says Brett, L.J., "seems to me material 
 which would alter the business effect of the instrument, 
 
 O) Purring v. Home (1826), 4 Bing. 28. 
 
 Qi) Gardner v. Walsh (1855), 5 E. & B. 83; cf. Clerk v. Blackstock 
 (1816), Holt, N. P. 474. 
 
 (t) Cf. Mason v. Bradley (1843), 11 M. & W. 590; Benedict v. 
 Con-den (1872), 49 New York R. 396, cutting off condition written at 
 bottom of note. 
 
 (A) Nicholson v. Revill (1836), 4 A. & E. 675. 
 
 (V) Tidmarsh v. Graver (1813), 1 M. & S. 735. 
 
 (m) Calvert v. Baker (1838), 4 M. & W. 417; Burchfield v. Moore 
 (1854), 23 L. J. Q. B. 261; cf. Hanbnry v. Lovett (1868), 18 L. T. 
 N. S. 366. Qu. if the acceptor consent: Walter v. Cubley (1833), 2 
 Cr. & M. 151; and, cf . Mason v. Bradley (1843), 11 M. & W. at 
 p. 594; but see Gibb v. Matlier (1832), 2 Cr. & J. at p. 262; Saul 
 v. Jones (1858), 28 L. J. Q. B. 37, which show that the position of 
 the drawer and indorsers is altered. 
 
 (n) Sufell v. Bank of England (1882), 9 Q. B. D. 555, C. A.; 
 Leeds Bank v. Walker (1883), 11 Q. B. D. 84. 
 
 (o) Attwood v. Griffin (1826), 2 C. & P. 368. 
 
 (p) See sect. 34 (4). 
 
 (q) Aldous v. Cornwell (1868), L. R. 3 Q. B. 573; see Beet. 10, ante. 
 
 (r) Farquhar v. Southey (1826), M. & M. 14; but see Bank of 
 Montreal v. Exhibit and Trading Co. (1906), 11 Com. Cas, 250, as 
 to adding the word " Limited " to the name of an unincorporated 
 company. 
 
 (s) Fanshawe v. Feet (1857), 26 L. J. Ex. 314. 
 
 (<) Decroix v. Meyer (1890), 25 Q. B. D. 343, C. A. 
 
 \u) Gardner v. Walsh (1855), 5 E. & B. 83, at p. 89. 
 
250 
 
 Bills of Exchange Act, 1882. 
 
 § 64. if used for any business purpose" (x). The materiality 
 of an alteration is a question of law (jy) . 
 
 Subject to two exceptions, the holder of a bill which has 
 been avoided by a material alteration cannot sue on the 
 consideration in respect of which it was negotiated to 
 him (z) . 
 
 Exception 1. — If the bill was negotiated to him after 
 the alteration was made, and he was not privy to the 
 alteration, he may sue on the consideration (a) . 
 
 Exception 2 .—If the bill was altered while in his 
 custody or under his control, he can still recover, provided 
 (a) that he did not intend to commit a fraud by the altera- 
 tion (6), and (b) that the party sued would not have had 
 any remedy over on the bill, if it had not been altered. 
 For example: — 
 
 1. A. sells goods to B., and draws a bill on him for the 
 price, payable to his own order. B. accepts. The bill is 
 subsequently altered while in A.'s possession. A. can sue 
 B. for the price of the goods, though no action could be 
 brought on the bill (c) . 
 
 2. C. sells goods to A. A., to pay for the goods, 
 indorses to C. a bill which he has drawn on, and which 
 has been accepted by, a third person. The bill is altered 
 while in C.'s hands. C. cannot sue A. for the price of the 
 goods, for the alteration has deprived A . of his remedy on 
 the bill against the acceptor (d) . 
 
 3. Note given for an agreed debt. The payee inno- 
 cently alters it by adding a stipulation for interest. He 
 can recover in an action on the consideration, though he 
 cannot recover on the note (e). 
 
 («) Suffell v. Sank of England (1882), 9 Q. B. B. 555, at p. 568; 
 see the test suggested by Cotton, L.J., at pp. 574, 575. 
 
 (y) Vance v. Lowther (1876), 1 Ex. D. 176; Peiser v. Lefkowits, 
 (1912) 2 K. B. at p. 243. 
 
 (z) Alderson v. Langdale (1832), 3 B. & Ad. 660. 
 
 (a) Burchfield v. Moore (1854), 23 L. J. Q. B. 261; cf. Oundy v. 
 Marriott (1831), 1 B. & Ad. 696. 
 
 (S) Parsons, vol. ii. p. 572; Hunt v. Gray (1871), 10 Amer. E. 
 232. 
 
 (o) Atkinson v. Hawdon (1835), 2 A. & E. 628; of. Sutton v. 
 Toomer (1827), 7 B. & C. 416, payee against maker of note. 
 
 (<i!) Alderson v. Langdale (1832), 3 B. & Ad. 660; see by way of 
 analogy the effect at common law of the loss of a bill, Crowe v. Clay 
 (1854), 9 Exch. 604. 
 
 (e) Payana Reena v. Pana Zaim, (1914) A. C. 618, P. O. 
 
Discharges. 251 
 
 Where a bill appears to have been altered, or there are § 64, 
 
 marks of erasure on it, tile party seeking to enforce the 
 
 instrument is bound to give evidence to show that it is not 
 avoided thereby (/). Cf. sect. 63(3), ante. 
 
 Discharge of Surety by Dealings with' Principal. 
 
 Where a relationship in the nature of principal and Principal and 
 surety exists between the parties to a bill, or the parties sur ety. 
 to a -bill transaction, and the holder having notice thereof 
 enters into a binding agreement with the principal to give 
 time to him, or, of his own act, discharges the principal, 
 the surety or sureties are thereby discharged (g), unless 
 the holder, in so doing, expressly reserves his rights against 
 the surety or sureties, thereby preserving the remedy 
 over (h) . 
 
 For the present purpose the acceptor of a bill is prima 
 facie the principal debtor, and the drawer and indorsers 
 are, as regards him, sureties, and the drawer of a bill is the 
 principal as regards the indorsers, and the first indorser 
 is the principal as regards the second and subsequent 
 indorsers, and ' so on in order (i) ; but evidence for the 
 present purpose is admissible to show the real relationship 
 of the parties, and it is immaterial that the holder was 
 ignorant of the relationship when he took the bill, pro- 
 vided he had notice thereof at the time of his dealings 
 with the principal (k) . For example: — 
 
 1 . The holder of a bill takes from the acceptor in lieu 
 of payment, a new bill payable at a future day, to which 
 
 (/) Knight v. Clements (1838), 8 A. & E. 215; Clifford v. Parks,- 
 (1841), 2 M. & Gr. 909; cf. Tatum v. Catomore (1851), 16 Q. B. at 
 p. 746; see, e.g., Cariss v. Tattersall (1841), 2 M. & Gr. 890, as to 
 what evidence suffices. 
 
 {g) Oriental Corporation v. Overend (1871), L. R. 7 Oh. 142; 
 affirmed (1874), L. R. 7 H. L._ 348; cf. Netherlands Code, Arts. 198, 
 199; aliter after judgment obtained against both principal and surety, 
 Be A Debtor, (1913) 3 K.. B. 11. 
 
 (//) Owen v. Soman (1853), 4 H. L. Cas. 997; Muir v. Crawford 
 (1875), L. R. 2 Sc. Ap. 456, H. L.; Jones v. WhiUher (1887), W. N. 
 p. 132, C. A.; New York Negotiable Instruments Law, § 201 (6). 
 
 (i) Cf. Cook v. Lister (1863), 32 L. J. C. P. at p. 127, per 
 Willes, J. 
 
 Ck) Ewin v. Lancaster (1865), 6 B. & S. at p. 577; Oriental Corp. 
 v. Overend (1871). L. R. 7 Ch. 142: affirmed (1874), -L. R. 7 H. L. 
 348. 
 
25? Bills of Exchange Act, 1882. 
 
 § 64. the drawer and indorsers are not parties. This discharges 
 
 Principal and ^e drawer and indorsers (7) . 
 
 surety. 2. The holder of a bill for 2001. takes from the acceptor 
 
 1001. in full discharge of his claim, but expressly reserves 
 his rights against the drawer and indorsers (thereby pre- 
 serving their rights against the acceptor) . The drawer 
 and indorsers are not discharged (m>) . 
 
 3 . The holder of a bill for 1001. accepts a composition 
 of 10s. in the pound from the acceptor under Bankruptcy. 
 Act, 1869, ss. 125, 126. The drawer and indorsers are 
 only discharged to the extent of the sum received by the 
 holder, for the acceptor is discharged by operation of 
 law (ri) . 
 
 4. The holder of a dishonoured bill enters into a 
 binding agreement to give time, to the first indorser. 
 This discharges the subsequent indorsers, but not the 
 drawer or acceptor (a) . 
 
 5. The holder of a bill at the request of the acceptor 
 delays presenting it for payment. The drawer is dis- 
 charged (p) . 
 
 6. A bill is accepted by six joint acceptors. Three 
 accept as sureties for the other three, who accept for the 
 accommodation of the first indorser. The holder, knowing 
 the facts, makes an arrangement with the first indorser. 
 The acceptors are- discharged (q). 
 
 7. A bill is accepted for the accommodation of the 
 dtawer and C. the indorser. The holder agrees to give 
 time to C. the indorser. The acceptor is discharged (r). 
 
 8. C. is the holder of a joint and several note made by 
 B. and X. X. signed merely to accommodate B., and as 
 surety for him. C, knowing this, agrees for consideration 
 to give time to B. X. is thereby discharged (s). 
 
 (J) Cf. Gould v. Rotnon (1807), 8 East, 576, and Petty v. Cooke- 
 (1871), L. E. 6 Q.B., at p. 794. 
 
 O) Muir v. Crawford (187S), L. B. 2 So. App. 456, H. L.; 
 Jones v. WUtaker (1887), W. N. p. 132, C. A. 
 
 (n) Re Jacobs (1875), L. B. 10 Ch. 211; of. Provincial Bank of 
 Ireland v. Dunne (1878), Ir. L. E. 2 Q. B. D. 21; Yglesias v. River 
 Plate Bank (1877), 3 C. P. D. 60. But as to a voluntary composition, 
 see Mayhew v. Boyes (1910), 110 L. T. N. S. 1, C. A. 
 
 (o) Claridge v. Bolton (1815), 4 M. t 8. at p. 232; Hall v. Cole- 
 (1836), 4 A. & E. 577. 
 
 (p) Latham v. Chartered Bank of India (1874), L. E. 17 Eq. 205. 
 
 (q) Mx/parte Webster (1847), De Gex, 414. 
 
 \r) Bailey v. Edwards (1864), 4 B. & S. 761. 
 
 (s) Greenough v. M'Clelland (1860), 30 L. J. Q. B. 15, Ex. Ch.: 
 
Discharges. 253 
 
 9. 0. is the holder of a joint and several note made hy § 64. 
 
 B. and X. C. knows that X. signed as surety to acoom- p rinoi j and 
 modate B. B. pays C. It turns out afterwards that surety, 
 this payment was a fraudulent preference. C. refunds 
 
 the money to B.'s trustees. ,X. is not discharged by B.'s 
 payment (t). 
 
 10. A bill is accepted for the accommodation of the 
 drawer. After it is due the holder is informed of this 
 and then agrees to give time to the drawer. The acceptor 
 is discharged («) .' 
 
 11. A bill drawn by A. and accepted by B. is dis- 
 counted with C. C. subsequently discovers that the bill 
 was drawn and accepted for the accommodation of X., 
 who is not a party to the bill, but who is to provide for it. 
 
 C. then enters into an agreement to give time to X. This 
 discharges the acceptor of the bill (cc) . 
 
 12. A note is made by a limited company, and is 
 indorsed by three directors in succession. It appears that 
 they all agreed to indorse the note to guarantee the com- 
 pany's debt. They are liable inter se as co-sureties, and 
 not in succession according to the order of their indorse- 
 ments (y) . 
 
 Who are Principal and Surety. 
 
 Formerly it was held at law that where a party's name 
 appeared on a bill as principal, e.g., as acceptor, he could 
 not be shown to be a surety, for that was a contradiction 
 of the written instrument (z) . This doctrine was after- 
 wards modified in cases where it could be shown there was 
 a contemporaneous agreement that he should be treated as 
 a surety (a), and now it is clearly established, that the 
 rights of the surety arise independently of the form of the 
 instrument. For the purpose of enforcing the debt the 
 principal debtor on the instrument may be treated as 
 
 (0 Petty v. Cooke (1871), L. E. 6 Q. B. 790. 
 
 (u) Ewin v. Lancaster (1863), 6 B. & S. 571; of. Torrance v. Bank 
 of British North America (1873), L. R. 5 P. 0. at p. 252. 
 
 (x) Oriental Corp. v. Overend (1871), L. R. 7 Oh. 142; affirmed 
 (1874), L. R. 7 H. L. 348. 
 
 (y) Macdonald v. Whitfield (1883), 8 App. Caa. 733, P. O.; as to 
 admissibility of par,ol evidence to explain the transaction,, ses at p. 748. 
 
 (z) F-enium v. Pocock (1813), 5 Taunt. 192. 
 
 (a) Manley v. Boycott (1853), 2 E. & B. 46. 
 
254 Bills of Exchange Act, 1882. 
 
 § 64. such (6); but, apart from this, as soon as the creditor is 
 affected with notice that- the apparent principal was and 
 is only a surety, the ordinary consequences which flow 
 from that relationship ensue, and the creditor disregards 
 them at his peril. Any such dealing with the real 
 principal or other sureties as would ordinarily discharge 
 a surety discharges the party liable on the -bill (c). And 
 where a principal debtor, by subsequent arrangement with 
 his co-principal, becomes only a surety, he thereby acquires 
 the rights of a surety as against, all parties with notice of 
 the change (d) . ' 
 
 As to the circumstances under which a surety is 
 discharged, there is nothing peculiar to bills or bill 
 transactions, and the reader is referred to De Colyar on 
 Guarantees, Rowlatt's Principal and Surety, and other 
 works on principal and surety. But the following salient 
 points may be noted 1 . 
 Giving time. Though a binding agreement to give time to the prin- 
 cipal discharges the surety, whether he be injured thereby 
 or not (e), mere delay, in suing the principal or pressing 
 him for payment does not discharge the surety. "I am 
 far from saying," says Tindal, C.J., "that there may not 
 be an extreme case of laches amounting to fraud, and 
 fraud would be a defence to the action, but not mere 
 negligence" (/). 
 
 The agreement to give time must be a binding agree- 
 ment, and founded on consideration. Thus, where the 
 executrix of the acceptor of a bill verbally promised to 
 pay the holder out of her own estate if he would forbear 
 to sue, and paid him interest for so forbearing, it was 
 held that, as her promise was void, the drawer was not 
 discharged by the delay (g) . 
 
 (b) Cf. Batson v. King (1859), 28 L. J. Ex. 327, at p. 328. 
 
 (c) Greenough v. M'Clelland (I860), 30 L. J. Q. B. 15; Oriental 
 Corporation v. Overend (1874), L. R. 7 H. L. 348, see at p. 360. 
 
 (d) Souse v. Bradford Banking Co., (1894) A. O. 586, 591, over- 
 ruling Swire v. Redman (1876), 1 Q. B. D. 536. 
 
 (e) Polak v. Everett (1876), 1 Q. B. D. 669, at p. 673, C. A. 
 
 (/) Goring v. Edmonds (1829), 6 Bing. 94, at p. 99. See, too, Bell 
 v. Banks (1841), 3 M. & Gr. .258; Black v. Ottoman Bank (1862), 15 
 Moore, P. C. 473, at p. 484; Carter v. White (1883), 25 Ch. D. 666, 
 at p. 672, C. A. So, too, in Scotland, Bay and Kyd v. Powrie (1886), 
 13 Seas. Cas. 777, . 
 
 (a) Philpot v. Briant (1828), 4 Bing. 717; of. Petty v. Cooke 
 (1871), L. R. 6 Q. B. 790. 
 
DlSCHAKGES. 255 
 
 Again, the agreement' to give time must be made with § 64. 
 
 the principal debtor, and not with a third party. Thus, 
 
 when the indorsee of a bill sued the drawer, it was heLd 
 to be no defence that the indorsee, without the drawer's 
 consent, had agreed with X., who was not a party to thei 
 bill, to give time to the acceptor in consideration of X.'s 
 promise to see the bill paid (h) . 
 
 Although mere delay in pressing the principal does 
 not discharge the surety, yet it may do so if it be in 
 contravention of the original contract. Thus, the defen- 
 dant signed a joint and several note on demand as 
 surety for the other maker, on the terms that the payee 
 should demand payment of the note from the other maker 
 within three years. The payee did not demand payment 
 within three years, and the other maker became insolvent. 
 Held, that the defendant was discharged (i) . So, too, in 
 the ordinary case, when the acoeptor of a bill is the prin- 
 cipal debtor, the drawer and indorsers are discharged, if 
 it be not presented for payment on its due date, for such 
 presentment is part of the original contract. 
 
 If in giving time to the principal the creditor expressly 
 reserves his rights against the surety, the latter is not dis- 
 charged : see the reason given by Lord Hatherley (7c) . 
 
 Unless the creditor reserves his rights against the surety, Discharge of 
 it is clear that discharging the principal must discharge the P rin01 P al - 
 surety, for the accessory obligation falls with the main 
 obligation. Thus, if the holder of a bill agrees to accept 
 a composition from the acoeptor, the drawer will be dis- 
 charged, unless it be a composition or scheme under the 
 Bankruptcy Act, when the discharge is regarded as being 
 effected by operation of law (I) . 
 
 Where two or more sureties contract severally, the Co-sureties, 
 creditor, by releasing one, does not discharge the others; 
 but "when the creditor releases one of two or more 
 sureties who- have contracted jointly and severally, the 
 others are discharged, the joint suretyship of the others 
 
 (A) Fraser v. Jordan (1857), 26 L. J. Q. B. 288. 
 
 («) Lawrence v. Walmsley (1862), 31 L. J. C. P. 143. 
 
 (le) Oriental Corporation v. Overend (1871), L. R. 7 Ch. App. at. 
 p. 150. 
 
 (T) Megrath v. Gray (1874), L. R. 9 C. P. 216; Inre Jacobs (1875), 
 L. B. 10 Ch. App. 208, at p. 214. 
 
Eight to 
 securities 
 
 256 Bills of. Exchange Act, 1882. 
 
 § 64. being part of the consideration of the contract of 
 " each " (m). 
 
 " A surety," say the Privy Council, " is entitled to the 
 benefit of all securities in the hands of the creditor, 
 whether, when he became a surety, he knew of them or 
 not. Thus, in Pearl v. Deacon, where the plaintiff was 
 surety in a promissory note for a sum lent by the 
 defendants to their tenant, and a mortgage was subse- 
 quently taken by the defendants on the tenant's furni- 
 ture for the same debt, they afterwards, under a distress, 
 took the same furniture for arrears of rent; it was held 
 that, inasmuch as the produce of the furniture was first 
 applicable to the payment of the note, the landlord could 
 not, as against the surety, apply it to the payment of the 
 rent, and that the surety was discharged, not,, it is to be 
 observed, absolutely, but pro tcmto. It has been held in 
 other cases that when a creditor wastes or improperly deals 
 with a security, the surety is released pro tcmto" (n). 
 It was formerly thought that the creditor was entitled to 
 the benefit of collateral securities given by the debtor to 
 the surety, but this is not so (o) . 
 
 Where a bill or note is part of the machinery for 
 creating an ordinary contract of suretyship, the doctrine 
 of the surety's right to securities applies in its entirety; 
 but in the course of an ordinary bill the drawer and 
 indorsers are not strictly sureties, but are in the nature 
 of sureties for the acceptor, and their equity to securities 
 held for the bill only attaches when the bill is dishonoured. 
 "This equity," says Lord Selborne, "will not incapaci- 
 tate bankers who hold a bill, accepted by their customer 
 and indorsed by a third party, from carrying on their 
 dealings with that customer by varying the securities 
 received from him according to the ordinary course of 
 those dealings, as long as he remains solvent, and before 
 the acceptance has been dishonoured. But it is an 
 equity which does attach when the bills, overdue and 
 .dishonoured* and the securities are found together in 
 
 (»») Ward v. National Bank of New Zealand (1883), 8 App. Cas. 
 755, at p. 764. 
 
 (n) Ward v. National Bank of New Zealand (1883), 8 App. Cas. 
 751, at p. 765, citing Pearl v. Beacon (1857), 26 L. J. Ch. 761. As 
 to waste of security, see Wulff v. Jay (1872), L. E. 7 Q. B. 756; 
 Rainbow v: Juggins (1880), 5 Q. B. D. 422. 
 
 (o) Re Walker, (1892) 1 Ch. 621. 
 
Discharges. 257 
 
 the hands of the secured creditor at the time when he § 64- 
 requires payment from the indorser; when the creditor 
 has then no other transactions depending with the cus- 
 tomer, and no claim upon the securities except for the bills 
 themselves" (p). 
 
 The machinery of a bill transaction will not be allowed 
 to defeat the rules in bankruptcy as to valuation of 
 securities. Thus, the acceptor deposited certain wool 
 with the drawer to secure payment of the draft. The 
 drawer indorsed the bill away, and the acceptor then 
 became bankrupt. The indorsee, by arrangement with 
 the drawer* proved for the full amount of the bill. The 
 drawer claimed to retain the security for the difference 
 between the dividend and the amount of the bill, but it 
 was held he could not do so (q) . 
 
 A contract of suretyship may be severable. Thus, Severable 
 where a surety guaranteed payments for goods, to be contracts. 
 delivered by instalments, and the creditdr took the 
 debtor's promissory note for one instalment, it was held 
 that the surety was only released as to that instalment (r) . 
 
 In a case in 1866 it was held that where the debtor 
 obtained two loans from a money club, the surety on 
 the first note could not claim that all moneys subsequently 
 paid in by the debtor should be credited to the first 
 note (s) . 
 
 Remeiml. 
 
 When a bill is given in renewal of a former bill, and Effect of 
 the holder retains such former bill,, the renewal, in the renewal - 
 absence of special agreement (t), operates merely as a con- 
 ditional payment thereof. If the renewal bill be paid in 
 due course or otherwise discharged, the original bill is 
 likewise discharged (w) ; but if the renewal bill be dis- 
 
 (p) Duncan v. N. # 8. Wales Bank (1880), 6 App. Cas. 1, at p. 13, 
 reversing S. 0., 11 Oh. D. 88, 0. A.; Ago, Ahmed v. Judith Crisp 
 (1891), 19 Ind. App. 24, P. C. (indorser of note). 
 
 (q) Baines v. Wright (1885), 16 Q. B. D. 330, C. A. Compare Em 
 parte European Bank (1871), L. B. 7 Ch. App. 99, as to double proof. 
 
 (r) Croydon Gas Co. v. Dickinson (1876), 2 C. P. D. 46, C. A. 
 
 (s) Wright v. Sickling (1866), L. E. 2 C. P. 199; of. Jones v. 
 Gretton (1853), 8 Bxoh. 773. See Be Sherry (1884), 25 Ch. D. 692, 
 C. A., as to appropriation of payments. 
 
 (t) Cf. Lewis v. Lyster (1835), 2 C. M. & R. 704; Lumley v. 
 Musgrave (1837), 4 Bing. N. C. at p. 15. 
 
 (w) Dillon v. Simmer (1822), 1 Bing. 100; of. S award v. Palmer 
 (1818), 2 Moore, 274; Lumley v. Hudson (1837), 4 Bing. N. C. 15. 
 
 17 
 
253 Bills of Exchange Act, 1882. 
 
 § 64. honoured, then, subject to the preceding 1 rule as to 
 principal and surety, the liabilities of the parties to the 
 original bill revive, and they may be sued thereon (x) . 
 Renewal. Renewing a bill or note operates as an extension of 
 
 the time for paying it (y) . Hence, if a bill be renewed 
 without the assent of all parties liable thereon as sureties, 
 the parties so liable are discharged; see ante, p. 251. 
 When there is an agreement to renew, the application 
 for renewal must be made within a reasonable time of 
 the maturity of the original bill, but it need not be made 
 before its maturity (z). When the holder of. a renewed 
 bill could not have maintained an action on the original 
 bill because there was no consideration for it (a), or the 
 consideration was illegal (&), or because he was privy to 
 some fraud connected therewith (c), he cannot sue on the 
 renewed bill (d) . A bill given in renewal of another bill 
 operates in the same way as a bill given in respect of any 
 other debt. The ordinary effect of giving a bill is that 
 the remedy for the debt is suspended until the dishonour of 
 the bill. See post, p. 353. The bill operates as condi- 
 tional payment, the condition being that the debt revives 
 if the bill cannot be realized. It is immaterial whether 
 the bill be payable on demand or in futuro(e). 
 
 In France, in the absence of special agreement, the 
 renewal of a bill extinguishes the original bill by 
 novatio (/) . 
 
 (x) Ex 'parte Barclay (1802), 7 Ves. jr. 597; Norris v. Aylett 
 (1809). 2 Camp, 329; cf. Kendrick v. Lomax (1832), 2 Or. & J. 405; 
 Sloman v. Cox (1834), 1 C. M. & R. at p. 472; Fenton v. Blackwood 
 (1874), L. R. 5 P. C. 167. 
 
 (y) Jagger Iron Co. v. Walker (1879), 76 New York R. 521. As 
 to the construction of a guarantee for renewal, see Barber v. Mackrell, 
 (1892) W. N. at p. 133; 41 W. R. 341, C. A. 
 
 (a) Maillard v. Page (1870), L. R. 5 Ex. 312; cf. Innes v. Munro 
 (1847), 1 Exch. 473; Torrance v. Bank of British North America 
 (1873), L. R. 5 P. C. 246, as to construction of agreements to renew. 
 
 (a) Southall v. Sigg (1851), 11 C. B. 481; cf. Edwards v. Chan- 
 cellor (1888), 52 J. P. 454. 
 
 (6) Chapman v. Black (1819), 2 B. & Aid. 588; Hay v. Ayling 
 (1851), 16 Q. B. 423. 
 
 (c) Lee v. Zagury (1817), 8 Taunt. 114. 
 
 (d) See, however, two apparent but not real exceptions, Mather v. 
 Maidstone (1856), 18 C. B. 273; Flight v. Reed (1863), 1 H. & O. 
 703. 
 
 (e) Currie v. Misa (1875), L. R. 10 Ex. at pp^ 163, 164, Ex. Oh. 
 As to retiring a bill by substituting -a forged Tenewal, which is inopera- 
 tive, see Bell v. Buckley (1856), 25 L. J. Ex. 163. 
 
 (/) Nouguier, §§ 1032—1042. 
 
Intervention for Honour. 259' 
 
 §65. 
 
 Acceptance and Payment for Honour. 
 
 65. (1) Where a bill of exchange has been Acceptance 
 protested for dishonour by non-acceptance (g), or ^r/prXst. 
 protested for better security (h), and is not overdue, 
 any person, not being a party already liable 
 thereon, may, with the consent of the holder, 
 intervene and accept the bill supra protest; for 
 the honour of any party liable thereon, or for the 
 honour of the person for whose account the bill is 
 drawn (i). 
 
 By eect. 93, post, it is sufficient that the bill has been 
 noted without the protest having been aetually extended. 
 
 The Act appears to enable the drawee as well as a 
 stranger to the bill to accept for honour (fc) . The person 
 for whose account a bill is drawn is commonly called the 
 " third account." Bacntfes, No. 42, says that if a bill be 
 accepted for the honour of an indorser, there may be 
 another acceptance for the honour of any party prior to 
 him; but this rule is believed to be obsolete (I). If, how- 
 ever, the acceptor for honour fails before the. maturity 
 of the bill, a second acceptance for honour is sometimes 
 obtained: cf. Storg, § 122. 
 
 In the United 1 States, as in England, the holder may 
 refuse to allow acceptance for honour (see Story, § 122), 
 for he may wish to exercise his immediate right of 
 recourse which arises on non-acceptance. By German 
 Exchange Law, Arts. 56, 57, if the bill contains a refer- 
 ence in need the holder must resort to the case of need; 
 
 (g) Mutford v. Walcot (1698), 1 Id. Raym. 575. 
 • (A) Ex -parte Waekerbath (1800), 5 Ves. jr. 574, and see sect. 51 (5), 
 ante. 
 
 (j) New York Negotiable Instruments Law, § 280. 
 •: (A) Cf. Beawes, No. 42, and 'Nougmer, § 574. 
 
 (i).See, however, New 'York Negotiable Instruments Law, § 280. 
 
 17(2) 
 
2 ?° Bills of Exchange Act, 1882. 
 
 § 65. but in other cases he may refuse an acceptance for honour. 
 : In France and Holland it seems the holder cannot refuse 
 
 an acceptance for honour (to) . 
 
 Acceptance (%\ a bill may be accepted for honour for part 
 
 lor honour. v ' J . , 
 
 only of the sum for which it is drawn. 
 
 (3) An acceptance for honour supra protest in 
 order to be valid must — 
 
 (a) be written on the bill, and indicate that it 
 is an acceptance for honour : 
 
 (b) be signed by the acceptor for honour (n). 
 
 It would be sufficient if the acceptor for honour merely 
 wrote " Accepted S. P." on the bill and signed it; but it 
 is usual for him to state for whose honour he accepts. 
 The practice is for an acceptance for honour to be attested 
 by a notarial " act of honour " recording the transac- 
 tion (o) . A clause requiring this to be done was inserted 
 in the bill, but was struck out in committee; so, perhaps, 
 this is no longer essential (p) . Of. sect. 68(3), as to 
 payment for honour. 
 
 (4) Where an acceptance for honour does not 
 expressly" state for whose honour it is made, it i& 
 deemed to be an acceptance for the honour of the 
 drawer (q). 
 
 (5) Where a bill payable after sight is accepted 
 for honour, its maturity is calculated from the 
 
 (»») See French Code, Art. 125; NougvAer, §§ 574, 575; Nether- 
 lands Code, Arts. 122, 123. 
 
 (») New York Negotiable Instruments Law, §§ 280, 281. 
 
 (o) See Brooks' Notary, 6th ed. p. 88, and of. Mitchell 9. Baring- 
 (1829), 10 B. & C. 4; Indian Act, sect. 101. 
 
 (jp) But it would scarcely be safe to omit the act of honour. 
 Sect. 97 saves the law merchant, and for charging parties abroad the- 
 usual is certainly the safer course; cf. German Exchange Law, 
 Art. 58 ; French Code, Art. 126. 
 
 (?) See German Exchange Law, Art. 59; Nougmer, § 578, and 
 Daniel, §578, to same effect. New York Negotiable Instruments 
 Law, § 282. 
 
Intervention for Honour. 261 
 
 date of the noting for non-acceptance, and not § 65. 
 from the dajte of the acceptance for honour (V). 
 
 This sub-section brings the law into accordance with 
 mercantile understanding, and gets rid of an inconvenient 
 ruling to the effect that maturity was to be calculated 1 
 from the date of acceptance for honour (s) . As to noting 
 see sect. 51 (4), ante. 
 
 66. (1 ) The acceptor for honour of a bill by Liability of 
 accepting it engages that he will, on due present- 2^ f ° r 
 ment, pay the bill according to the tenor of his 
 acceptance, if it is not paid by the drawee, pro- 
 vided it has been duly presented for payment, and 
 protested for non-payment, and that he receives 
 notice of these facts (f). 
 
 By sect. 93, post, it is sufficient if the bill has been 
 noted for protest, although the protest has not been ex- 
 tended . Asa reason for requiring presentment for payment 
 to the drawee, Lord Ellenborough says: " Effects often 
 reach the drawee, who has refused acoeptance in the first 
 instance, out of which the bill may and would be satisfied 
 if presented to him again when the period of payment 
 had arrived " (w). But by sect. 51 (6), ante, where 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. 
 
 Under the continental codes, acoeptance for honour is 
 known as acceptance by " intervention," and the acceptor 
 for honour is in the nature of a neffotiorum gestor (x) . 
 
 (r) New York Negotiable Instruments Law, § 285. 
 (s) See Williams v. Germaine (1827), 7 B. & C. 468, at p. 471. 
 (t) See Story, § 123; Williams v. Germaine (1827), 7 B. & C. 468 j 
 New York Negotiable Instruments Law, § 284. 
 
 (u) Hoare v. Cazenove (1812), 16 East, 391, at p. 398. 
 (x) Story, § 125: Pothier, Nos. 113, 114; Nouguier, § 584. 
 
262 Bills of Exchange Act, 1882. 
 
 § 66. Under French Code, Art. 127; Netherlands Code, Art. 
 
 127; and German Exchange Law, Art. 58, an acceptor 
 
 for honour is hound to give notice of his acceptance to the 
 person for whose honour he has accepted. The rights of 
 the acceptor for honour arise on payment. Under German 
 Exchange Law, Art. 65, however, an acceptor for honour 
 who is not called on to pay the hill is nevertheless entitled 
 to a commission of one-third per cent. 
 
 (2) The acceptor for honour is liable to the 
 holder and to all parties to the bill subsequent to 
 the party for whose honour he has accepted {y). 
 
 It seems an acceptor for honour is bound by the 
 estoppels which bind an ordinary aoceptor, and also by 
 the estoppels which would bind the party for whose 
 honour he accepted (,«/); as to which see sects. 54, 55. 
 
 Presentment qj n\ Where a dishonoured bill has- been 
 
 to acceptor ■ • v / 
 
 for honour or accepted for honour supra protest, or contains a 
 
 C JUS 6 OI DGsd ax 
 
 reference in case of need, it must be protested for 
 non-payment before it is presented for payment 
 to the acceptor for honour, or referee in case of 
 need (a). 
 
 By virtue of sect. 93, post, it is sufficient if the bill has 
 been noted, although the protest has not been extended. 
 As to holder's option to resort to case of need, see sect. 15, 
 ante, and notes, thereto. 
 
 (2) Where the address of the acceptor for 
 honour is in the same place where the bill is pro- 
 tested for non-payment, the bill must be presented 
 
 (y) New York Negotiable Instruments Law, § 283. 
 
 (z) Phillips v. im Thurn (1866), L. R. 1 C. P. at p. 471; S. O. 
 on demurrer (1865), 18 C. B. N. S. 694. 
 
 (a) Cf . Hoare v. Cazenove (1812), 16 Bast, 391 ; German Exchange 
 Law, Arts. 62 and 88; New York Negotiable Instruments Law, § 286. 
 
Intervention for Honour. 263 
 
 to him not later than the day following its § 67. 
 maturity ; and where the address of the acceptor 
 for honour is in some place other than the place 
 where it was protested for non-payment, the bill 
 must be forwarded not later than the day follow- 
 ing its maturity for presentment to him (b). 
 
 This sub-section reproduces the effect of the repealed 
 6 & 7 Will. 4, c. 58. By sect. 92, post, non-business days 
 are to be excluded in computing the time. 
 
 If the bill be not presented in due time to the acceptor 
 for honour, it is conceived that he, and any party who 
 would have been discharged if he had paid the bill, are 
 discharged by the holder's laches; but there is no decision 
 in point (c) . 
 
 (3) Delay in presentment or non-presentment 
 is excused by any circumstance which would 
 excuse delay in presentment for payment or non- 
 presentment for payment (d). 
 
 See sect. 46, ante, as to excuses for non-presentment 
 and delay; and cf . Nouguier, § 583. 
 
 (4) When a bill of exchange is dishonoured by 
 the acceptor for honour it must be protested for 
 non-payment by him(e). . 
 
 68. (1) Where a bill has been protested for Payment for 
 
 • , j honour supra 
 
 non-payment, any person may intervene and pay pro test. 
 it supra protest for the honour of any party liable 
 
 (6) Cf. New York Negotiable Instruments Law, § 287. 
 
 (c) Cf. Story v. Batten (1830), 3 Wend. B. 486, New York; German 
 Exchange Law, Art. 60; Nouguier, § 583. 
 
 (af) Cf . New York Negotiable Instruments Law, § 288. 
 
 (<?) Cf. Nouguier, §§ 1320, 1321; Brooks' Notary, 4th ed. p. 108; 
 German Exchange Law, Arts. 62 and 89; Netherlands Code, Arjfc. 181; 
 New York Negotiable Instruments Law, § 289. 
 
264 Bills of Exchange Act, 1882. 
 
 § 68. thereon, or for the honour of the person for whose 
 Payment for account the bill is drawn (f). 
 
 honour. v ' 
 
 By sect. 93, post, it is sufficient if the bill has been 
 noted, although the protest has not been extended. The 
 person for whose account a bill is drawn is commonly 
 called the " third account." 
 
 When a bill has been paid supra protest it ceases to be 
 negotiable (g) . 
 
 Promissory notes are sometimes, though not often, paid 
 supra protest. 
 
 Payment for honour is known in continental countries 
 as payment by "intervention," which expresses its 
 nature as a %egotianem gestia. By French Code, Art. 159, 
 such payment may be made by "tout inter venant." 
 But this, it seems, has been interpreted to mean any person 
 other than a party already liable on the bill; Nouguier, 
 §§ 1004 — 1008. There appears to be no good reason for 
 any such limitation. 
 
 (2) Where two or more persons offer to pay a 
 bill for the honour of different parties, the person 
 whose payment will discharge most parties to the 
 bill shall have the preference (h). 
 
 (3) Payment for honour supra protest, in order 
 to operate as such and not as a mere voluntary 
 payment, must be attested by a notarial act of 
 honour which may be appended to the protest or 
 form an extension of it(»). 
 
 (4) The notarial act of honour must be founded 
 
 (/) Geralopula v. Wieler (1851), 20 L. J. C. P. 105; of. Ex parte 
 Wyld (I860), 2 De G. P. & J. 642; Brooks' Notary, 4th ed. p. 108; 
 New York Negotiable Instruments Law, § 300. 
 
 (g) Ex ■parte Swan (1868), L. R. 6 Eq. 344; Nouguier, § 1026; cf. 
 Deaeonv. Stodhart (1841), 2 M. & Gr. at p. 320. 
 
 (A) To the same effect, French Code, Art. 159; German Exchange 
 Law, Art. 64; New York Negotiable Instruments Law, § 303. 
 
 (*) Cf . 'Ex parte Wyld (1860), 2 De G. F. & J. 642; Brooks' Notary, 
 4th. ed. pp. 108 — 110, and for forms, see pp. 226—228; New York 
 Negotiable Instruments Law, § 301. 
 
Intervention for Honour. 265 
 
 on a declaration made by the payor for honour, § 6 8- 
 or his agent in that behalf, declaring his intention Payment for 
 "to pay the bill for honour, and for whose honour 
 he pays (k). 
 
 (5) Where a bill has been paid for honour, all 
 parties subsequent to the party for whose honour 
 it is paid are discharged, but the payor for honour 
 is subrogated for, and succeeds to both the rights 
 and duties of, the holder as regards the party for 
 whose honour he pays, and all parties liable to 
 ihat party (I). 
 
 Illustrations. 
 
 1. A dishonoured bill is held by the fifth indorsee. If X. pays 
 it supra protest for the honour of the acceptor, he acquires a right 
 to reimbursement against the acceptor alone; if he pays for the 
 honour of the first indorser, he oan sue the first indorser and the 
 •drawer (provided they have due notice), and the acceptor, but 
 the second and subsequent indorsers are discharged. 
 
 2. Bill accepted for the accommodation of the drawer. It is 
 •dishonoured and paid supra, protest by X. for the honour of the 
 •drawer. X. cannot recover from the accommodation acceptor, 
 for he is not a party liable to the drawer {m). 
 
 Pothie/r, Nos. 113, 114, points out that the right of the 
 payor is not, properly speaking, a right of action on the 
 bill, but a right arising out of the quasi contract nego- 
 tiorum g&storum ; hence the payor cannot again negotiate 
 the bill, or transferrins rights. 
 
 (K) New York Negotiable Instruments Law, § 302. 
 
 (1) Goodall v. PolMll (1845), 14 L. J. C. P. 146, duties, e.g., notice 
 •of dishonour; Ex parte Swan (1868), L. R. 6 Eq. 344, rights; cf. Ex 
 parte Wyld (1860), 2 De G. F. & J. 642; French Code, Art. 159; 
 'German Exchange Law, Art. 63; New York Negotiable Instruments 
 Law, § 304. 
 
 (pi) Ex parte Lambert (1806), 13 Ves. 179; Daniel, § 1255 ; Parsons 
 ■on Notes and Bills, Vol. I. p. 318. See eontrd, Ecu parte Swan (1868), 
 L. R. 6 Eq. 344; but that was a case of cross accounts rather than an 
 accommodation bill, and the words of the section are " parties liable," 
 mot " prior parties." 
 
26& Bjlls op Exchange Act, 18S2. 
 
 § 68. (6) The payor for honour on paying to the- 
 
 holder the amount of the bill and the notarial 
 expenses incidental to its dishonour is entitled to 
 receive both the bill itself and the protest. If 
 the holder do not on demand deliver them up 
 he shall be liable to the payor for honour in 
 damages (n). 
 
 (7) Where the holder of a bill refuses to re- 
 ceive payment supra protest he shall lose his right 
 of recourse against any party who would have- 
 been discharged by such payment (o). 
 
 (») To same effect, German Exchange Law, Art. 63; New York. 
 Negotiable Instruments Law, § 306. 
 
 (o) To same effect, Nouguier, § 1009; German Exchange Law,. 
 Art. 62; New York Negotiable Instruments Law, § 305. 
 
Lost Instruments. 267 
 
 §69. 
 
 Lost Instruments. 
 
 69. Where a bill has been lost before it is over- Hoider'sright 
 due, the person who was the holder of it may ofiostbm. 
 apply to the drawer to give him another bill of the 
 
 same tenor, giving security to the drawer if re- 
 quired to indemnify him against all persons what- 
 ever in case the bill alleged to have been lost 
 shall be found again. 
 
 If the drawer on request as aforesaid refuses to 
 give such duplicate bill, he may be compelled to 
 do so. 
 
 This section reproduces the effect of the repealed 9 & 
 10 Will. 3, c. 17, s. 3. That 'Act applied onlj to inland 
 bills for 51. or upwards (p). The remedy is still very 
 inadequate, as it gives no power to obtain an indorse- 
 ment or acceptance over again. The continental codes 
 contain much more elaborate provisions on the subject: see 
 Nouguier, §§ 305, 219; German Exchange Law, Art. 66. 
 
 Presumably, if the drawer, on tender of indemnity, 
 declined to give a new bill, an action would lie to compel 
 him, and damages might be claimed in the alternative. 
 
 As to execution of instruments by order of the Court, 
 seethe Supreme Court of Judicature Act, 1884 (47 & 48 
 Vict. o. 61, s. 14), post }[ p. 393. 
 
 As to bills in a set, see sect. 71, post. 
 
 70. In any action or proceeding upon a bill, Action on 
 the Court or a judge may order that the loss of 
 
 the instrument shall not be set up, provided an 
 
 (p) But see Walmesley v. Child (1749), 1 Ves. eenr. 341, and Rhodes 
 . Morse (1850), 14 Jur. 800 (cheque). 
 
268 Bills Of Exchange Act, 1882. 
 
 § 70. indemnity be given to the satisfaction of the Court 
 or judge against the claims of any other person 
 upon the instrument in question. 
 
 This section reproduces, with an extension in one 
 direction, the provisions of sect. 87 of the Common Law 
 Procedure Act, 1854 (17 & 18 Vict. c. 125), set out post, 
 p. 388. That enacfanent applied only to actions in the 
 Superior Courts. " The present section applies to all courts, 
 and to all proceedings, .e.gr., proofs in bankruptcy. The 
 provision of the Common Law Procedure Act has not been 
 repealed, because it applies to all negotiable instruments, 
 and not merely to bills and notes. For form of order, see 
 Chitty's King's Bench Forms, ©d. 14, p. 231. In the 
 note to the form it is said that " orders have been made 
 at Chambers under the C. L. P. Act, 1854, s. 87, where 
 the action is not on the bill or instrument itself, but on the 
 consideration for it." 
 
 " If no tender of an indemnity were made before suit," 
 says Willes, J., "the plaintiff would oertainly not obtain 
 relief on such terms as to give him the costs of the 
 suit"(g). 
 
 At. common law, if a negotiable bill or note were lost, 
 no action could be maintained, either on the instrument 
 or on the consideration for it (r), even if lost When over- 
 due (s) ; but if its destruction could be proved, it seems the 
 action would lie (t) . 
 
 By sect. 51 (8), ante, protest may be made on a copy of 
 a lost or destroyed bill.: 
 
 The fact that a bill has been lost or destroyed does not 
 excuse the omission to give notice of dishonour («) . As to 
 
 (?) King v. Zimmerman (1871), L. E. 6 C. P. 466, at p. 468. 
 Note the order made in that case. See, further, Jefferson v. Ulster 
 Bank (1900), 34 Ir. T. L. R. 58. 
 
 (r) Pierson v. Butohinson (1809), 2 Camp. 211; Crowe v. Clay 
 (1854), 9 Exch. 604, Ex. Ch.; aliter, as to a non-negotiable note, 
 Wain v. Bailey (1839), 10 A. & E. 616. 
 
 («) Hansard v. Mobinson (1827), 7 B. & C. 90. But as to relief in 
 equity, see Macartney v. G-raham (1828), 2 Sim. 285. 
 
 (t) Wright v. Maidstone (1855), 24 L. J. Ch. 623; of. Edge v. 
 Bumford (1862), 31 L. J. Ch. 805; but see Crowe v. Clay, supra. 
 
 («) Thaekray v. Blacketi (1812), 3 Camp. 164; Daniel, § 1464. 
 
LOST INSTRUMENTS. 269 
 
 presentment to charge drawer and indorsers, see note, § 70. 
 ante, pp. 165, 170. ~ 
 
 By rule 252 of the Bankruptcy Bules, 1915, subject to 
 any special order of the Court, a hill or note must be 
 produced before proof; and by rule 269, subject to the 
 provisions of this* section, it must he exhibited 1 hef ore 
 dividend. See post, p. 
 
 As to giving secondary evidence of lost bills, payable 
 outside the British Islands, when the loss is attributable to 
 the war, see sects. 2 and 3 of the Bills of Exchange Act, 
 1914 (4 & 5 Qm. 5, o. 82), past, p. 414. 
 
2T0 Bills of Exchange Act,- 1882. 
 
 §71- 
 
 Bill in a Set. 
 
 m 
 
 Rules a8 to 7^ (\j Where a bill is drawn in a set, each 
 
 part pi the set being numbered, and containing a 
 reference to the other parts,, the whole of the 
 parts constitute one bill {x)i 
 
 If one part of a set omit reference to the rest, it 
 becomes a separate bill in the hand's of a bond fide 
 holder Qy) . It has been held that an agreement to deliver 
 up an unaccepted bill drawn in a set is an agreement to 
 deliver up all the parts in existence (z) ; and also that a 
 person who negotiates a bill of exchange drawn in a set, 
 is bound to deliver up all the parts in his possession, but 
 by negotiating one part he does not warrant that he has 
 the rest (a) . 
 
 In England the obligation to give a set is presumably 
 a matter of bargain. Under the continental codes it is 
 a matter of right, and careful machinery is provided to 
 enforce the right. The parts of a set (duplicata) must be 
 distinguished from copies (copie): Nouguier, § 209; and 
 German Exchange Law, Arts. 70 — 72. 
 
 Only one part of a set requires to be stamped. The 
 remaining parts are exempt, " unless issued or in some 
 manner negotiated apart" from the stamped part. If 
 the stamped part of a set be lost or destroyed, the 
 unstamped parts are admissible in evidence on proof of 
 such loss or destruction (&). 
 
 Presentment for acceptance is not a negotiation (c) . 
 Compare the terms of the present Stamp Act, quoted 
 
 («) Cf. Soeiete Generate v. Metropolitan Bank (1873), 27 L. T, 
 N. S. 849; and French Code, Art. 110; New York Negotiable Instru- 
 ments Law, § 310. 
 
 (y) German Exchange Law, Art. 66; and cf. French Code, Art. 147. 
 
 (z) Kearney v. West Grenada Co. (1856), 26 L. J. Ex. 15. Ratio 
 decidendi not clear. 
 
 (a) Pinard v. Kloehman (1863), 32 L. J. Q. B. 82. 
 
 (6) 54 & 55 Vict. c. 39, s. 39 (Stamp Act, 1891), post, p. 402. 
 
 (e) Cf. Griffin v. Weatherby (1868), L. R. 3 Q. B. at p. 760. 
 
Bill in a Set. aYl 
 
 above, -with those of the repealed 1 17 & 18 Vict. c. 83, s. 6, § 71. 
 
 which made it necessary for the holder to hold all the 
 
 parts of a set. 
 
 (2) Where the holder of a set indorses two or 
 more parts to different persons, he is liable on 
 every such part, and every indorser subsequent to 
 him is liable on the part he has himself indorsed 
 as if the said parts were separate bills (d). 
 
 This is probably declaratory. It accords with the con- 
 tinental codes: see Nouguiesr, § 218; German Exchange 
 Law, Art. 67. 
 
 The drawer signs all the parts of a set. An indorser 
 sometimes signs all the parts that he holds, but not 
 always. It has been said that an indorser is not bound 
 to pay a dishonoured set, unless all the parts bearing his 
 indorsement are delivered up to him or accounted for (e) ; • 
 but see sub-sect. (6). In America it has been held that 
 in the case of an accepted bill it is sufficient if the accepted 
 part be given up, and in the case of an unaccepted bill if 
 the protested part be given up, there being no presump- 
 tion that the missing parts have been improperly dealt 
 with (/) ._ 
 
 (3) Where two or more parts of a set are 
 negotiated to different holders in due course, the 
 holder whose title first accrues is as between such 
 holders deemed the true holder of the bill ; but 
 nothing in this sub-section shall affect the rights 
 of a person who in due course accepts or pays the 
 part first presented to him (g). 
 
 Is the true owner entitled' to get the remaining parts 
 
 (d) Cf. New York Negotiable Instruments Law, § 3121 
 
 (e) Societe Generate v. Metropolitan Bank (1873), 27 L. T. N. S. 
 at p. 854. 
 
 (/) Dowries v. Church (1839), 13 Peters, 205, per Story, J.; 3 
 Kent, Com. 100. 
 
 (gr) New York Negotiable Instruments Law, § 311. 
 
^ Bills of Exchange Act, 1882. 
 
 § 71. from the person who in good faith has given value. for 
 - — - — them? There are dicta to this effect (h), but such a rule 
 seems inconsistent 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 liable 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 be found. 
 The person to whom the part has been forwarded for ac- 
 ceptance 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 liable to the holder 
 thereof (k). 
 
 See " holder in due course " denned by sect. 29, ante. 
 
 (6) Subject to the preceding rules, where any 
 one part of a bill drawn in a set is discharged by 
 
 (A) Cf. KoUsworth v. Sunter (1830), 10 B. & C. 449, at pp. 450, 
 454. 
 
 (») Cf. JjMli v. Dewnistoun (1851), 6 Bxeh. at p. 496; German 
 Exchange Law, Art. 67; New York Negotiable Instruments Law, 
 § 313. 
 
 (k~) French Code, Art. 148 ; New York Negotiable Instruments Law, 
 § 314. 
 
Bill in a Set. 273 
 
 payment or otherwise, the whole bill is dis- § 71. 
 charged (/). 
 
 " Copies " of a bill must be distinguished from the parts " Copies." 
 of a set. They are not often seen in England. The Act 
 does not regulate them, and there is no case law on the 
 subject. On the continent they are better known, and the 
 practice concerning them is well summed up in Articles 66 
 and 67 of the Hague Uniform Regulation. They are as 
 follows: — 
 
 "Art. 66. Every holder of a bill of exchange has the 
 right to make copies of it. The copy m'ust reproduce the 
 original exactly, with the indorsements and all the other 
 statements thereon. It must specify where the copy ends. 
 It may be indorsed and guaranteed by ' aval ' in the same 
 manner and with the same effects as the original." 
 
 " Art. 67. The copy must specify the person in posses- 
 sion of the original instrument. This person is bound 
 to hand over the aforesaid instrument to the lawful holder 
 of the copy. If he refuses the holder cannot exercise his 
 rights of recourse against the persons who indorsed the 
 copy until he has had a protest drawn up specifying that 
 the original has not been given up to him on his demand." 
 
 (I) New York Negotiable Instruments Law, § 315. 
 
 38 
 
274 
 
 Bills of Exchange Act, 1882. 
 
 §72. 
 
 Rules where 
 laws conflict. 
 
 Requisites in 
 form. 
 
 Srump. 
 
 Conflict 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 supra protest, is determined by 
 the law of the place where such contract was 
 made (m). 
 
 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 (n). 
 
 (b) 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 
 
 (m) Cf. Guepratte v. Young (1851), 4 De G. & S. 217, at p. 228; 
 
 tory, §§ 131 — 137; Westlake's Private International Law, ed. 5, 
 
 § 228; Dicey's Conflict of Laws, ed. 2, p. 588; German Exchange Law, 
 
 Art.~85; Nouguier, §§ 1417—1427. See 
 " indorsement " defined by sect. 2. 
 («) Cf. Westlake, ed. 5, § 209. 
 
 issue," "acceptance," and 
 
Conflict of Laws. 275 
 
 between all persons who negotiate, hold, § 72. 
 or become parties to it in the United ~~ 
 Kingdom (o). 
 
 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 valid. 
 
 2. By the old law of Illinois a verbal acceptance is valid. 
 A bill drawn in London on a town in Illinois is verbally accepted 
 there. The acceptance is valid (p). 
 
 3. A bill drawn and payable in Prance expresses no value 
 received, and is therefore invalid according to French law. If it 
 is indorsed in England theindorser could be sued here (q), though 
 the drawer could not. 
 
 4. Bill drawn in New York on Liverpool against consignment 
 of cotton. Whether this is conditional in form or not'is (it seems) 
 a question to be determined by American law (r). 
 
 The contract is made where the delivery is effected, not 
 where the signature is attached (s) . 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 1 as a ques- 
 tion 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. 
 
 (o) See Be 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 as a mere procura- 
 tion was immaterial. Cf. Dicey, ed. 2, p. 588. 
 
 (p) Cf. Seudder v. Union Bank (1875), 1 Otto, Sup. Ot. U. S. 406; 
 which goes still further. 
 
 (?) Cf . Wynne v. Jackson (1826), 2 Buss. 351 and 634. 
 
 (r) Guarantee Ttust Co. of New York v. Eannay § Co., (1918) 2 
 K. B. 623, C. A. 
 
 (s) Chapman v. CoUrell (1865), 34 L. J. Ex. 186. Cf. Bank of 
 Montreal v. Exhibit and Trading Co. (1906), 11 Com. Cas. 250. As 
 to delivery, see sect. 21, and notes thereto. 
 
 18 (2) 
 
276 Bills of Exchange Act, 1882. 
 
 § 72. of foreign countries (<). But th© better opinion seemed to 
 be tbat if a bill, for want of a stamp,, was merely inad- 
 missible in evidence according 1 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 void at th© place of issue, it was void 
 everywhere (m). Th© Act appears to negative the latter 
 branch 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. 
 
 interpre- (2) Subject to the provisions of this Act (%), the 
 
 interpretation of the drawing, indorsement, 
 acceptance, or acceptance supra protest of a 
 bill, is determined by the law of the place 
 where such contract is made (y). 
 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 (z). 
 
 Illustkations. 
 
 1. An English, note payable to bearer is negotiated by delivery 
 in a country where this mode of transfer is not recognised. The- 
 title to the note passes by such delivery (a). 
 
 2. Action in England on a bill drawn in Belgium, and indorsed 
 in blank in Prance. The effect of such indorsement is determined 
 according to Erench law, i.e., it operates as a " procuration " (6) . 
 
 (<) Wynne v. Jackson (1826), 2 Buss. 351; James v. Catherwood 
 (1823), 3D. SB. 190. 
 
 (m) Bristow v. Sequeville (1850), 5 Exch. 275; cf. Clegg v. Levf 
 (1812), 3 Camp. 166; Story, § 137. 
 
 (x) For the provisions referred to, see the remaining sub-sections,, 
 sieot. 57 (damages), land, perhaps, ee=t3. 15 (case of need) and 53 (funds 
 in hands of drawee). 
 
 (y) Allen v. Kemble (1848), 6 Moore, P. C. 314; Story on Conflict 
 of Laws, § 314; Home v. Bouquette (1878), 3 Q. B. D. at p. 520, 
 per Brett, L.J.; Dicey on Conflict of Laws, ed. 2, p. 592. 
 
 (?) Lebel v, Tucker (1867), Tu. R. 3 Q. B. 77. 
 
 (a) Be la Chaumette v. Bank of England (1831), 2 B. & Ad. 385. 
 
 ' (6) Trimbey v. Vignier (1834), 1 Bine. N. C. 151; Bradlaugh v. 
 
 De Bin (1868), L. E. 3 C P. 538, per Willes, J. These oases were 
 
 overruled by Bradlaugh v. De Bin (1870), L. R. 5 C P. 473, on th& 
 
Conflict op Laws. 277 
 
 3. A general acceptance given in Paris is to be interpreted 8 72. 
 according to French law (c). 
 
 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 English law, 
 but it could be negotiated by indorsement in England (d). 
 
 5. A cheque drawn abroad on a London bank is stolen, and the 
 indorsement of the first indorsee is forged. A Vienna bank cashes 
 the cheque, and according to Austrian law acquires a good title 
 thereto. The Vienna bank transmits the cheque to a London 
 bank, who receive the amount from the bank on which it was 
 drawn. The London bank is not guilty of conversion (e). 
 
 The term " interpretation," in this sub-section, it is 
 submitted, clearly includes the obligations of the parties 
 as deduced from such interpretation (/) . 
 
 Story, § 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 accept- 
 ance 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 where they 
 respectively entered into the contract." 
 
 The case of a bill aocepted in one country but payable 
 in another gives rise to a difficulty. Suppose a bill is 
 accepted in France, payable in England. Probably the 
 maxim, Contraxisse unusquisque in eo loco intelligitw in 
 
 question of fact whether the indorsee could, according to French law, 
 sue the holder in his own name, but the principle that the indorsement 
 must be interpreted by French law was not questioned. 
 
 (c) Cf. Don v. Lippmann (1837), 5 01. & F. at pp. 12, 13, H. L.; 
 Story,' $147. 
 
 Q£) Robertson v. Burdekin (1843), 1 Koss, Scotch L. C. 824. See, 
 now, sect. 8 (1) and (4), ante. 
 
 (e) Embiricos v. Anglo-Austrian Bank, (1905) 1 K. B. 677, C. A. 
 Qu. whether the drawer could be sued on these facts if the cheque had 
 been stopped? Cf. Dicey's Conflict of Laws, ed. 2, pp. 519, 522. 
 
 (/) C£ Westlake's Private International Law, 5th ed. § 229; Aloook 
 v. Smith, (1892) 1 Ch. at p. 256 (interpretation = legal effect); 
 Allen v. Kemble (1848), 6 Moore, P. C. 314 (bill drawn in Demerara 
 on Scotland, accepted payable in London— drawer discharged by 
 compensalio according to Demerara law). 
 
278 
 
 Bills of Exchange Act, 1882. 
 
 §73. 
 
 Transfer 
 abroad. 
 
 Considera- 
 tion. 
 
 Measure of 
 damages. 
 
 quo ut solveret se obliguMMt, would' apply (g) . 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. 
 
 Although Embwieos v . Anglo- Austrian Bank (Illustra- 
 tion 5) may be regarded as an application of sub-sect. (2), 
 yet it undoubtedly goes further, and supplements the 
 section by declaring that, quoad transfer in a foreign 
 country, bills and notes must be regarded as chattels, and 
 as subject to the ordinary rules which regulate the transfer 
 of chattels. " The rule that the transfer of chattels must 
 be governed by the law of the country in which the 
 transfer takes place applies to a bill or cheque "(h). 
 Sect. 72 is not exhaustive, and sect. 97 (2) saves common 
 law when not inconsistent with the Act. The rules of 
 private international law, as administered by our courts, 
 are part of the common law. 
 
 Where a cheque is drawn by an Englishman in French 
 territory on a bank in London it seems that the legality 
 of the instrument must be determined by English law (i), 
 although the validity of the consideration will be judged 
 by French law Qc) . 
 
 The cases seem to regard the measure of damages on 
 the breach of the contracts on a bill as resting on the same 
 principles as the interpretation of those contracts (I); 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. Subject to the positive 
 
 (g) Robinson v. Bland (17607, 2 Burr. 1077 (bill accepted in 
 France payable in England) ; cf . Moulis v. Owen, (1907) 1 K. B. at 
 pp. 754, 755, C. A. (cheque drawn in France on bank in London). 
 
 (ft) Embiricos v. Anglo-Austrian Bank, (1905) 1 K. B. at p. 683, 
 C. A. ; following Alcock v. Smith, (1892) 1 Ch. 238, C. A. (bill taken 
 in execution in Norway) . 
 
 («) Moulis v. Owen, (1907) 1 K. B. 746, C. A., Moulton, L.J., 
 dissenting (cheque for money borrowed to pay losses at baccarat); 
 discussed, 'Dicey on Conflict of Laws, ed. 2, pp. 532, 533; Latw 
 Quarterly Review, vol. 28, p. 127, by A. Cohen, K.C. 
 
 (A) Saxby v. Fulton, (1909) 2 K. B. 208, C. A. But if fraud 
 or duress be involved, no action can be maintained in England, Societe 
 des Eotels Reunis v. Hawker (1913), 29 T. L. R. 578 (cheque given 
 in France on London under threat of prosecution) . 
 
 (J) See the language of Allen v. Kemble (1848), 6 Moore, P. C. at 
 pp. 321, 322. 
 
Conflict of Laws. 279 
 
 provisions of sect. 57, the rule with respect to damages § 72. 
 
 appears to be that " the plaoe at which each party to a 
 
 bill or note undertakes that he hirrmelf' will pay it, deter- 
 mines with regard to him! the lex loci contractus according 
 to which his liability is governed'" {in). Thus, where 
 a bill was drawn in California on Washington, and was 
 dishonoured, it was held that damages against the drawer 
 must be measured by Californian law, and that as part 
 of those damages he must pay interest at the Californian 
 rate (n) ; and it seems clear on principle that damages 
 against an indorser should be measured by the law of the 
 country where he indorsed the bill (o). 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 (p) . 
 
 So, again, when laws conflict, the validity and effect Discharge 
 of a discharge is determined by the law of the place where wli en laws 
 the contract in question was made (q) . For example: — 
 
 1. Bill accepted at Leghorn payable there. By the old 
 law of Leghorn an acceptor could procure the cancellation 
 of his acpeptance if he had not at maturity received funds 
 from the drawer. An acceptor so discharged at Leghorn 
 cannot be sued in England (r) . 
 
 2. Bill drawn in the United .States (and issued there) 
 on a person in England is dishonoured by non-acceptanoe. 
 The drawer cannot be sued in England if he has been 
 discharged in America under the bankruptcy law there in 
 force (s). 
 
 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 
 
 (m) Mayne on Damages, 4th ed. p. 234; Story on Conflict of Laws, 
 § 315. 
 
 (») Gibbs v. Fremont (1853), 9 Exoh. 25; of. Ex parte Meredith 
 (1863), 32 L. J. Ch. 300. 
 
 (o) Mayne on Damages, 4th ed. p. 234; Story on Conflict of Laws, 
 §§ 314, 315; but see the point regarded as open in Gibbs v. Fremont, 
 supra. 
 
 (p) Cooper v. Marl Waldegrave (1840), 2 Beav. 282. 
 
 (?) Cf. Ellis v. M' Henry (1871), L. B. 6 C. P. at p. 234; Story, 
 §§ 163—165. 
 
 (r) Burrovjs v. Jemino (1726), 2 Stoa. 733; cf. Gibbs v. Societe des 
 Metaux (1890), 25 Q. B. D. at pp. 407, 408, C. A. 
 
 (s) Totter v. Brown (1804), 5 East, 124; cf. Symons v. May (1851), 
 6 Exch. 707. 
 
280 
 
 Bills op Exchange Act, 1882. 
 
 § 72. Demerara law this operates as a discharge of the bill (by 
 ~ compensatio). The drawer is discharged (t). 
 
 4. Accommodation bill drawn and issued in Austria, but 
 accepted and payable in England, is dishonoured. The 
 holder receives from 1 the drawer in Austria a smaller sum 1 
 in satisfaction of the bill. This, according to Austrian 
 law, is a valid discharge. A subsequent indorsee cannot 
 recover from the acceptor in England (w) . 
 
 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 (a;). 
 
 6. Action on a promissory note made in France. Plea 
 that the suit was barred! by the French law of prescription, 
 which was five years. Held, that the French law in 
 question was a law of procedure, and that the action could 
 only be barred by the English Statute of Limitations (,t/) . 
 
 Holder's (3) The duties of the holder with respect to 
 
 duties. v ' r 
 
 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 (s). 
 
 Illustrations. 
 
 1. Defendant indorsed to plaintiff in England a bill payable in 
 Paris. Plaintiff indorsed to a Frenchman, who on dishonour 
 protested it, and transmitted notice of protest to defendant in 
 accordance with Prench law. Held that plaintiff could recover 
 from defendant, though he had not given him notioe of dishonour 
 according to English law (a) . 
 
 0) Allen v. Kemble (1848), 6 Moore, P. C. 315; of. Wilkinson, v. 
 Simson (1838), 2 Moore, P. C. 275. Compensatio is recognised as a 
 discharge in all countries where civil law prevails. See further on 
 that subject, Nouguier, §§ 1053—1060; French Code Civil, Arts. 289— 
 299. 
 
 («) Malli v. Dennistoun (1851), 6 Exch. 483, 36th plea and judg- 
 ment at p. 493. 
 
 (a:) Bartley v. Hodges (1861), 30 L. J. Q. B. 352; Story, § 165; 
 cf. Gibbs v. SocieU des Metauz (1890), 25 Q. B. D. 399, C. A. 
 
 (y) Euber v. Sterner (1835), 2 Bing. N. C. 202. 
 
 (z) Story, § 176; Pardessus, Arts. 1496—1499; Pothier, No. 57; 
 Dicey, ed. 2, p. 595. 
 
 (o) Hirschfield v. Smith (1866), L. R. 1 C. P. 340. 
 
Conflict of Laws. 281 
 
 2. Bill drawn in England, payable in Spain, is indorsed in 8 72. 
 
 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 
 dishonour by non-acceptance is required. Plaintiff can recover 
 irom defendant (6). 
 
 Tho sub-section is a further application of the maxim, 
 Locus regit actum (c) . See to the . like effect German 
 Exchange Law, Art. 86. 
 
 (4) Where a bill is drawn out of but payable in Amount 
 
 ,__..__. , ,. ii- expressed in 
 
 the United Kingdom and the sum payable is foreign 
 not expressed in the currency of the United curr " v 
 Kingdom, the amount shall, in the absence 
 of some express stipulation, be calculated 
 according to the rate of exchange for sight " 
 drafts at the place of payment on the day 
 the bill is payable (d ). 
 
 Illustration. 
 
 Bill for 1,000 francs, payable three months after date, is drawn 
 in Pranoe 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. 395. 
 
 (5) Where a bill is drawn in one country and Due date, 
 is payable in another, the due date thereof is 
 
 (b) Home v. Rouquette (1878), 3 Q. B. D. 511, C. A.; and of. 
 Rouquette v. Overmann (1875), L. E. 10 Q. B. 525 (effect of French 
 moratorium). 
 
 (c) See a criticism on the language of the sub-section, Westlake's 
 International Law, 3rd ed. §§ 231, 232. His suggestion that " act " 
 includes " omission " is presumably correct. 
 
 (d) Cf. Bimohfleia v. ftmith (1866), L. E. 1 C. P. at p. 353; 
 Belgian Code, Art. 33; Dicey on Conflict of Laws, ed. 2, p. 596. As 
 to stipulations fixing rate of exchange, s©8 sect. 9 (2), ante. 
 
282 ' Bills of Exchange Act, 1882. 
 
 § 72. determined according to the law of the place 
 
 where it is payable. 
 
 Illustrations. 
 
 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 (e). 
 
 2. A bill is drawn in England payable in Paris three months 
 after date. After it is drawn, but before it is due, a " moratory " 
 law is passed in Eranoe, in consequence of war, postponing the 
 maturity of all current bills for one month. The maturity of 
 this bill is for all purposes to be determined by Erench law (/) . 
 
 3. A bill accepted and payable in Germany is held by an 
 English bank. War breaks out before the bill matures, and a 
 German moratory law postpones payment indefinitely, and pro- 
 vides that interest shall not be payable for the period between 
 the due date and the conclusion of the moratorium. The 
 maturity of the bill depends on German law(gr). 
 
 Where a bill is drawn in a country where the old style 
 prevails, and is dated accordingly, there is no conflict of 
 laws, but only a conflict of calendars. Thus if a bill 
 be drawn in Petrograd on London bearing date 1st Jan- 
 uary, it must be dealt with in England as a bill dated 
 14th January;- that is to say, the old style date must be 
 translated into the Gregorian date (h) . Russian bills 
 payable after date in England usually bear both the eastern 
 and western date, the maturity being calculated according 
 to the western date. 
 Proof of ■ When a question arises as to the law of a foreign country, 
 
 oreign aw. ^ mug £ ]j e p roV ed as a fact in the case by the evidence 
 of lawyers or other experts belonging to the country in 
 question (*) . In the absence of such evidence the foreign 
 rule, it seems, is presumed to be the same as the English 
 rule (/) . 
 
 (e) Bouquette v. Overmann (1875), L. E. 10 Q. 13. 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 Geneva; see at p. 535. Cf. 
 Dieey, ed. 2, p. 596. 
 
 (g) Re Francke and Easoh, (1918) 1 Ch. 470. 
 
 (h) For a table of corresponding dates, see Whitaker's Almanac. 
 
 (»). Westlake's Priv. Int. Law, 3rd ed. p. 364; Concha v. Murietta 
 (1890), 40 Ch. D. 543, O. A. 
 ■ (;) The Parchim, (1918) A. C. 157, P. O. 
 
Cheques. 283 
 
 §73. 
 
 PART III. 
 Cheques on a Banker. 
 73. A cheque is a bill of exchange drawn on a Cheque 
 
 ii . ■. i '■. defined. 
 
 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 (Jc). 
 
 Illustrations. 
 
 1. Instrument in the form of a cheque, ordering the bank to 
 pay the sum mentioned c< provided the receipt form at foot hereof 
 is duly signed, stamped and dated." This is not a cheque, as it 
 is not an unconditional order to pay the money (I) . 
 
 2. A. gives C a cheque on a blank sheet of paper, writing on 
 it the words " to be retained," and promising him to substitute 
 another cheque on a proper banker's form. This he does not 
 do. The cheque is a valid cheque, for it is an unconditional 
 order to the banker, the words in question being only a direction 
 to the payee (m). 
 
 See " bill of exchange " denned by sect. 3, ante, and 
 "banker" by sect. 2. 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. 
 
 The Act is declaratory in so far as it defines a cheque 
 
 (K) New York Negotiable Instruments Law, § 321. 
 
 (0 Bavins v. London # S. W. Bank, (1900) 1 Q. B. 270, C. A.; 
 cf. Capital $ Counties Bank v. Gordon, (1903) A. C. at p. 252, per 
 Lord Lindley. Aliter, where a note at the bottom of the cheque ran 
 " the Ireceipt at back hereof must be signed, &o.," for this is a direction 
 to the payee, not to the banker, Nathan v. Ogden's, Ltd. (1905), 93 
 L. T. N. S. 126, C. A.; and cf. Thairlwall v. Great Northern Railway. 
 (1910) 2 K. B. 509 (dividend warrant). 
 
 (m) Robert* v. Marsh, (1915) 1 K. B. 42, C. A.; cf. Glen v. 
 Semple (1901), 3 F. 1134, Court of Session (cheque running "pay 
 against cheque " or cash).. 
 
a8 * Bills of Exchange Act, 1882. 
 
 § 73. as a bill of exchange (n) . 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 (o) . 
 
 By sect. 7 of the Colonial Stock Act, 1877 (40 & 41 
 Yict. c. 59), coupons attached to stock certificates to bearer 
 under that Act are to be deemed to be cheques on a banker 
 for the purpose of any enactment relating to cheques, other 
 than a stamp Act. 
 
 See cheques compared With and distinguished from 
 ordinary bills of exchange by Parke, B. (p), Erie, J., and 
 Byles, J. (q), Palles, C.B. (r), and the Supreme Court 
 of the United States (s) . All cheques are bills of ex- 
 change, but all bilk of exchange' are not cheques; there- 
 fore an authority to draw cheques does not necessarily 
 include an authority to draw bills (t) . 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 (w) . 
 
 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 lieu of payment, but the 
 Bank Charter Acts would in many cases render this 
 illegal. As to post-dated cheques, see note to sect. 13 (2), 
 ante. As to when a cheque becomes stale, so as to be on 
 
 (») M'Zean v. Clydesdale Bank (1883), 9 App. Cas. 95, per Lord 
 Blackburn. 
 
 (o) Ibid, at p. 106. 
 
 Qp) Ramehnrn Mullick v. Luchmeeehund Badakissen (1854), 9 
 Moore, P. C. at p. 69; of. Serle v. Norton (1841), 2 Moo. & Bob. at 
 p:' 404. 
 
 (?) Keane v. Beard (1860), 8 C. B. N. S. at pp. 380, 381, as 
 modified by Ilopkinson v. Forster (1874), L. E. 19 Eq. at p. 76, 
 Jesael, M.R. 
 
 (>•) Lynn v. Bell (1876), 10 Ir. E,. C. L. at p. 490. 
 
 (s) Merchants' Bank v. State Bank (1870), 10 Wallace, at p. 647. 
 
 It) Forster v. Maehreth (1867), L. R. 2 Ex. 163. 
 
 («) Brooks v. Mitchell (1841), 9 M. & W. at p. 18, Parke, B.; 
 Chartered Bank v. Dickson (1871), L. R. 3 P. O. at p. 579, Lord 
 Cairns. 
 
' Cheques. 285 
 
 the footing of an overdue bill, see sect. 36 (3), ante. As § 73. 
 
 to excuses for omitting to give notice of dishonour, see 
 
 sect. 50 (2), especially clause (c), ante. An affidavit under 
 Order XIV., verifying the cause of action, need not speci- 
 fically allege that notice of the dishonour of a cheque has 
 been given, or that it is excused '(»), but this must be stated 
 in the specially indorsed writ (y) . As to cheques for less 
 than twenty shillings in Scotland, see note' to sect. 3, ante. 
 As to forged indorsements on cheques, see sect. 60, ante. 
 
 Certified or Marked Cheques. — In Canada the practice 
 of certifying cheques prevails; and in two appeals irom 
 Canada it has been held by the Privy Council that where 
 a cheque is marked or certified by being initialled by the 
 bank on which it is drawn, the marking operates as a 
 representation that the bank, at the time of certifying, has 
 funds of the drawer in its hands sufficient to meet pay- 
 ment of the cheque, but, at any rate in the absence of any 
 specific usage, the marking appears to have no other 
 effect (z) . It is clearly not an acceptance that the holder 
 can take advantage of : see sect. 17 (2), ante. As to certi- 
 fied cheques in the United States, see Daniel, §§ 1601 — 
 1611. Under §§ 323^325 of the New York Negotiable 
 Instruments Law, the certification of a cheque is equiva- 
 lent to an acceptance, but when procured by the holder, 
 discharges the drawer and indorsers. It further operates 
 as an assignment of funds. 
 
 In France, cheques are regulated by the " Loi du 
 23 Mai, 1865," as modified by the "Loi du 19 Fevrier, 
 1874," and a law of 1911 authorised the crossing of 
 cheques. The French law defines a cheque, as "L'ecrit 
 qui sous la forme d'un mandat de paiement sert au tireur. 
 a effectuer le retrait a son profit ou au profit d'un tiers de 
 tout ou partie des fonds portes au credit de son compte et 
 disponible." As to Italy, see Italian Com. Code, Arts. 
 339 — 344. Germany in 1908 passed a new law dealing 
 
 O) May v. Chidley, (1894) 1 Q. B. 451. 
 
 Qb) Roberts v. Plant, (1895) 1 Q. B. 597, C. A. 
 
 (z) Gaden v. Newfoundland Savings Bank, (1899) A. C. 281, 
 P. C. ; Imperial Bank of Canada v. Bank of Hamilton, (1903) A. C. 
 49, P. C. ; and of. Goodwin v. Robarts (1875), L. R. 10 Ex. at pp. 351, 
 352; per Cockburn, O.J., who says as regards England, "A custom has 
 grown up among bankers themselves of marking cheques for the pur- 
 pose of clearing, by which they become bound to one another." See 
 also Paget on Banking, ed. 2, pp. 88 — 94. 
 
286 
 
 Bills of Exchange Act, 1882. 
 
 §73. 
 
 Presentment 
 of cheque for 
 payment. ' 
 
 Reasonable 
 time. 
 
 Eights of 
 holder when 
 drawer is 
 discharged. 
 
 with cheques (a) . The continental codes do not require 
 a cheque to be drawn on a, banker, and in mercantile lan- 
 guage foreign demand drafts are frequently referred to 
 as cheques, though not drawn on a banker. 
 
 74. Subject to the provisions of this Act (b) — 
 
 (1) Where a cheque is not presented for pay- 
 ment within a reasonable time (c) of its issue, 
 and the drawer or the person on whose 
 account it is di-awn 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 (d). 
 
 (2) In determining what is a reasonable time 
 regard shall be had to the nature of the in- 
 strument, the usage of trade and of bankers, 
 and the facts of the particular case. 
 
 (3) The holder of such cheque as to which 
 such drawer or person is discharged shall be 
 a creditor, in lieu of such drawer or person, 
 of such banker to the extent of such dis- 
 charge, and entitled to recover the amount 
 from him. 
 
 (a) See an article in the Journal of the Society of Comparative 
 Legislation for August, 1908, comparing the provisions of the new 
 German law with English law: Eor an English translation, see 
 Journal of Institute of Bankers, May, 1908. 
 
 (&) See sect 46, ante, as to excuses for non-presentment and delay 
 in presentment. 
 
 (o) See Wheeler v. Young (1897), 13 Times L. E. 468, reasonable 
 time a question of fact for jury. 
 
 (d) CI. New York Negotiable Instruments Law, § 322. 
 
Cheques. 287 
 
 This section alters the previous law. It was introduced § 74. 
 in the Lords hy 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 (e), 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 (/) . 
 
 By virtue of sect. 45 (2), ante, 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 (g) . 
 
 Sub-section (2), 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 (h), be presented for payment on the day 
 after it is received (i) . 
 (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 (k) . 
 
 0) Laws v. Rand (1857), 27 L. J. C. P. 76; Heywood v. Pickering 
 (1874), L. R. 9 Q. B. at p. 432; Kinyon v. Stanton (1878), 28 Amer. 
 R. 601. Aa a reason for the six year limit, see Pott v. Clegg (1847), 
 16 M. & W. 321. 
 
 (/) Alexander v. Bv.rchfield (1842), 7I.lt Gr. 1061; Robinson v. 
 Hawksford (1846), 9 Q. B. 52; Bailey v. Bodenham (1864), S3 L. J. 
 C P 252 
 
 \g) Of.' Smith v. Jones (1838), 20 Wend. 192, New York. No 
 English decision. 
 
 (h) Firth ■/. Brooks (1861), 4 L. T. N. S. 467. 
 
 («) Alexander v. Burchfield (1842), 7 M. & Gr. 1061. 
 
 (A) Hare v. Henty (1861), 30 L. J. C. P. 302; Prideaux v. Criddle 
 
288 
 
 Bills of Exchange Act, 1882. 
 
 § 74. (3.) In computing time non-business days must be 
 
 excluded (I); and when a cheque is crossed, any 
 delay caused by presenting the cheque pursuant 
 to the crossing is presumably excused (m) . 
 The result of the cases seems to be this. A party who 
 receives a cheque has a clear day for presenting pr 
 forwarding 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 responsible 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 for- 
 wards it to another agent, the loss as regards third parties 
 falls on the 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 (n), or 
 between customer and banker (o) . In each case it must 
 bo determined as between the particular parties. See a 
 different standard of reasonable time as between vendor 
 and vendee where the vendor of goods was paid by the 
 cheque of the vendee's agent (p). 
 
 The effect of sub-section (3), read with sub-sect. (1), 
 appears to be this: — 
 
 A person draws a cheque for 1001. 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 dis- 
 charged, but the holder can prove for 100Z. 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. 
 
 (1869), L. E. 4 Q. B. 455; Heywood v. Pickering (1874), L. R. 9 
 Q. B. 428. 
 
 (0 Cf. 34 & 35 Vict. u. 17; and see sect. 92, 'post. 
 
 On) Cf. Alexander v. Burchfield (1842), 7 M. & Gr. at p. 1067. 
 Since this case the crossing of cheques has received legislative sanction. 
 
 (») See, e.g., Moule v. Brown (1838), 4 Bing. N. C. 266. 
 
 (o) See, e.g., Hare v. Henty (1861), 30 L. J. C. P. 302. 
 
 (p) Hopkins v. Ware (1869), L. R. 4 Ex. 268. 
 
Cheques. 289 
 
 75. The duty and authority of a banker to § 75. 
 pay a . cheque drawn on him by his customer are Revocation 
 
 j , . , , of banker's 
 
 determined by — authority. 
 
 (1) Countermand of payment (q) : 
 
 (2) Notice of the customer's death (r). 
 
 IlLUSTBATIONS. 
 
 1. A. draws a cheque for 601. in favour of 0. The same day, 
 after business hours, he telegraphs to his bank to stop the cheque. 
 By an oversight of the clerks, the telegram is not brought to the 
 manager's notice till two days later, and the cheque in the mean- 
 time has been paid. This is not an effective countermand, and the 
 bank can debit A.'s account with the amount of the cheque (s). 
 
 2. A firm of two partners has a banking account. One of them 
 dies. The authority of the surviving partner to draw cheques on 
 the firm account is not (it seems) thereby determined (t). - 
 
 3. One partner in a firm directs the banker not to pay a firm 
 cheque. The banker (it seems) is justified in acting on this 
 instruction (w) . 
 
 A cheque given by the drawer in contemplation of Donatio 
 death must be presented for payment by the donee before mortis cam&. 
 the drawer's death in order to entitle the donee to receive 
 the amount out of the drawer's estate as a donatio mortis 
 causa. For example: — 
 
 1. A. draws a cheque in favour of C, and in contem- 
 plation of death hands it to him as a gift. After A.'s 
 death it is presented and payment refused. C. cannot 
 claim for the amount against A.'s estate (x). 
 
 2. A., in contemplation of death, draws a cheque and 
 gives it to C. After A.'s death C. presents the cheque, 
 and the bankers, in ignorance of A.'s death, pay it. C. 
 
 ( ? ) Cf. Cohen v. i?«Ze.(1878), 3 Q. B. D. 371; M'Lean v. 
 dale Bank (1883), 9 App. Cas. 95. 
 
 (r) Rogerson v. Ladbroke (1822), 1 Bing. 93. 
 
 («) Curtice v. London City and Midland Bank, (1908) 1 K. B. 293, 
 C. A. As to paying a draft contrary to standing instructions, see 
 Twibell v. London Suburban Bank (1869), W. N. p. 127. 
 
 (i5) Backhouse v. Charlton (1878), 8 Oh. D. 444; see, too, Usher 
 v. Dauncey (1814), 4 Camp. 97. 
 
 (m) Lindley on Partnership, ed. 8, p. 169. 
 
 (x) Hewitt v. Kaye (1868), L. R. 6 Bq. 198; Beak v. Beak (1872), 
 L R. 13 Eq. 489; cf. Jones v. Lock (1865), L. K. 1 Ch. 25. 
 
 c. 19 
 
294) Bills of Exchange Act, 1882. 
 
 § 75. can (probably) retain the money as against A.'s repre- 
 sentatives (y) . 
 
 ' 3. A., in contemplation of death, draws a cheque and 
 gives it to 0. Before A.'s death C. presents it for pay- 
 ment. 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 (2). 
 
 4. A., in contemplation of death, draws a cheque and 
 gives it to 0. Before A.'s death C. negotiates the cheque 
 for value. The holder can claim for the amount against 
 A.'s estate (a). 
 
 5. A., in contemplation of death, draws a cheque and 
 gives it to C, who presents it for payment before A.'s 
 death. A.'s account is overdrawn, but the banker refuses 
 to pay the cheque because doubtful of the drawer's signa- 
 ture. C, the donee, is not entitled to receive the amount 
 out of the drawer's estate (6). 
 
 The position of the donee of a cheque is this: he 
 cannot successfully sue the drawer's executors on the in- 
 strument because he is not a holder for value (ante, p . 1 12), 
 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 (c) . Of course, if the donor, instead of giving his 
 own cheque, gives the cheque of a third person, which 
 he holds, the gift is good, and the difficulty adverted to 
 above does not arise (d) . 
 Bankruptcy. The banker's authority to pay his customer's cheque 
 is further revoked by the fact that a receiving order in 
 bankruptcy has been made against him, or by notice that 
 he has committed an available act of bankruptcy (e). 
 
 (y) Cf . Trite v. Hubert (1793), 2 Ves. jun. at p. 118. The bankers 
 are justified in paying. 
 
 (z) Bromley v. Brunton (1868), L. E. 6 Eq. 275. 
 
 (o) Molls v. Pearee (1877), 5 Ch. D. 730. 
 
 (6) Re Beaumont, (1902) 1 Ch. 889. 
 
 (c) Cf. Hatch v. Searles (1854), 2 Sm. & G. at pp. 151, 155. 
 
 Id) Clement v. Cheeseman (1884), 27 Ch. D. 631, and ante, p. 151. 
 
 (e) Bankruptcy Act, 1914 (4 & 5 Geo. 5, c. 59), =. 45, and as to 
 dealings with undischarged bankrupt, see sect. 49, and see available 
 
Cheques. 291 
 
 A banker is under no obligation to honour his cus- § 75. 
 
 tomer's cheques if he is served with a garnishee order, Gar . . 
 
 even though the balance to the customer's credit exceeds order, 
 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 iielationsof 
 cheques may be summarized as follows: — banker and 
 
 (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 (g). Hence the general- rule that, 
 in the case of a current account, the Statute of Limitations 
 begins to run in favour of the banker from the last opera- 
 tion on the account (h) . 
 
 The relation of banker and customer arises from con- 
 tract, and the duties are reciprocal. The customer must 
 use reasonable care in drawing his cheques, so as not to 
 facilitate frauds on the banker, and if a cheque shows 
 irregularity on the face of it the banker should refer to his 
 customer before paying it (i) . There is no fixed rule, 
 but most banks decline to pay a cheque more than six 
 months old without instructions from! their customer. 
 
 .act of bankruptcy denned by sect. 167; cf. Vernon v. Hankey (1787), 
 2 T. R. 113; and Ex parte Sharp (1844), 3 M. D. & D. 490, under 
 former Bankruptcy Acts. 
 
 (/) Rogers v. WHteley (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. 
 
 (g) Cf. Pott v. Clegg (1847), 16 M. & W. 321; Foley v. HUl 
 (1848), 2 H. L. Ca. 28; Ex p. Coe (1861), 3 De G. F. & J. 335. 
 See, too, Re Ballett's Estate (1880), 13 Ch. D. at pp. 727, 728, O. A.; 
 Re Agra Bank (1866), 36 L. J. Ch. 151, banker is debtor to, not 
 trustee for, his customer. 
 
 (A) Pott v. Clegg (1847), 16 M. & W. 321, but a different rule 
 applies to a deposit account where the money can only be withdrawn 
 on notice, Atkinson v. Bradford Building Society (1890), 25 Q,. B. D. 
 at p. 381, C. A. 
 
 (i) London Joint Stock Bank v. MacMillan, (1918) A. C. 777, see 
 especially per Lords Shaw and Parmoor. 
 
 19 (2) 
 
banks. 
 
 292 Bills of Exchange Act, 1882. 
 
 § 75. (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 (fc), unless the requisite funds- 
 were paid in so short a time before the dishonour of the 
 cheque that the banker could ' not with the exercise of 
 reasonable diligence have ascertained the state of accounts 
 between them(T). 
 
 (3.) In the absence of special directions from the 
 customer, it seems to be the duty of the banker to pay 
 the customer's cheques in the order in which they are 
 presented (to) . 
 Branch (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 (n) ; but where a customer has accounts, 
 at two or more branches the bank is entitled to combine 
 such accounts against hjm (p) ■ 
 
 The combined accounts must be kept in the same right; 
 e.g., a personal and 1 a trust account cannot be combined. 
 
 (k) Marzetti v. Williams (1830), 1 B. & Ad. 415; Whitaker v. Bank 
 of England (1835), 1 C. M. & R. 744; Gray v. Johnston (1868), L. R. 
 3 H. L. 1, see at p. 14, per Lord Westbury; but see per Lord Cairns 
 and Bodenham v. Hoshyns (1852), 2 De G. M. & G. 903; cf. Goodwin 
 v. Sobarts (1875), L. R. 10 Ex. at p. 351, Ex. Ch. As to the 
 measure of damages, see ante, p. 208. As to banker claiming a lien, 
 see Agra Bank v. Hoffmann (1865), 34 L. J. Ch. 285. As to with- 
 drawal of money paid into a bank by a principal who has given an 
 agent authority to draw on it, see Societe Coloniale v. London and 
 Brazilian Bank (1911), 17 Com. Cas. 1, C. A. As to recovery by 
 a third party of money paid in by mistake to a customer's overdrawn 
 account,, see Eerrison v. Glyn, Mills $ Co. (1912), 81 L. J. K. B. 
 465, H. L. ; 17 Com. Cas. 41, H. L. 
 
 (J) Whitaker v. Bank of England (1835), 1 C. M. & R. at pp. 749, 
 750, Parke, B.; cf. Bransby v. "East London Bank (1866), 14 L. T. 
 N. S. 403. 
 
 (m) Kilsby v. Williams (1822), 5 B. & Aid. 819; cf. Boyd v. 
 Emmerson (1834), 2 A. & E. 184, at p. 202. 
 
 («) Woodland v. Fear (1857), 7 E. & B. 519. So, too, a customer- 
 having a balance at one branch, cannot withdraw it on demand at 
 another branch, though at his own cost he may apply to have it trans- 
 ferred, Clare v. Sresdnsr Bank, (1915) 2 K. B. 576, distinguishing- 
 Leader v. Disconto Gesellschaft (1914), 31 T. L. R. 83; cf. also 
 Leete v. Disconto Gesellsehaft, (1916) W. N. p. 13; 85 L. J. K. B. 
 281. Notice to stop a cheque at one branch is not notice to another 
 branch: London whd South Western Bank v. Buszard (1919), 35> 
 T. L. R. 142. 
 
 (o) Gamett v. M'Kewan (1872), L. R. 8 Ex. 10, 
 
Cheques. 293 
 
 See the whole status of branch banks in regard to bills § 75. 
 •discussed by the Privy Council (p). 
 
 In the absence of special agreement, express ,or implied, Overdraft, 
 founded on consideration, a banker is of course under no 
 obligation to let a customer overdraw (q). " Overdrawing 
 a banking account is borrowing money" (r). 
 
 A cheque on payment becomes the property of the Property in 
 drawer (s), but the banker who pays it is entitled to keep P aid cheque, 
 it as a voucher until his account with his customer is 
 settled (t). 
 
 Entries made in customer's pass-book are prima facie Pass-book, 
 evidence against the bank (w) . 
 
 As the pass-book is made up by the banker it does not 
 constitute a settled account. Hence if the drawer's sig- 
 nature to a cheque is forged the mere fact that he omits to 
 examine his piatss-book when returned to him, and does 
 not discover that he has been debited with the amount, does 
 not preclude him from recovering the sum so debited from 
 his banker (a;). On the other hand the banker may be 
 bound by a mistaken entry. For example, a customer's 
 
 O) Prince v. Oriental Bank (1878), 3 App. Cas. 325. 
 (?) Gumming v. Shand (I860), 29 L. J. Ex. at p. 132. As to' 
 implied agreement, see Armfield v. London and Westminster Bank 
 (1883), 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. customer's account, except for good' 
 reasons, see Hardy v. Veasey (1868), L. R. 3 Ex. 107a As to con- 
 sideration to support a promise to honour an overdraft, see Fleming 
 ,. Bank of Neil/ Zealand, (19*00) A. C. 577, P. C. 
 (r) Lindley on Partnership, ed. 8, p. 169. 
 (s) B. v. Watts (1850), 2 Den. C. O. 15. 
 
 (0 Cf. Charles v. Blaekwell (1877), 2 C. P. D. at p. 162, C. A. 
 But when a banker pays a. bill accepted payable at his bank, the 
 practice is to return the cancelled bill to the customer on the following 
 day. 
 
 («) Commercial Bank v. Bhind (1848), 1 Macq. H. L. 643; 
 Cou-per's Trustees v. National Bank of Scotland (1889), 16 Sess. Cas. 
 412 ; Gaden v. Newfoundland Savings Bank, (1899) A. C. at p. 28^6, 
 P. C. As to appropriation of payment by entries in bank books not 
 communicated to customer, see Simson v. Ingham (1823), 2 B. & C. 
 65 ; and as to such entries in pass-book, see at p. 73. See, too, ILoop&r 
 v. Keay (1875), L., R. 1 Q. B. 178. As to facts which in the United 
 States may preclude a customer from disputing errors in his pass-book, 
 see Leather Manufacturers' Bank v. Morgan (1886), 117 U, S. Rep, 
 96 (Sup. Court of U. S.). 
 
 (#) Walker v. Manchester and Liverpool District Bank (1913), 108 
 L. T. N. S. 728, following Kepitigalla Rubber Estates Co. v. National 
 Bank of India, (1909) 2 K. B. 1010. 
 
294 
 
 Bills of Exchange Act, 1882. 
 
 §76. 
 
 Lunatic 
 customer. 
 
 Duty as to 
 bill). 
 
 Moratoria. 
 
 balance is £60, but it is entered as £70 by wrongly- 
 crediting an item of £10. If the customer in good faith' 
 draws a cheque for £65, and the bank dishonours it, the 
 customer is- entitled to substantial damages (y) . 
 
 It seems on principle that the duty of a banker to pay 
 his customer's cheques, and probably also his authority to 
 pay them, may be determined by notice that the customer 
 has become a lunatic (z) . 
 
 When a customer accepts a bill payable at his bankers, 
 it is an authority to the banker to pay it (a) ; but the 
 banker is not bound to do so in the absence of special 
 arrangement (6). In the case of a cheque he is protected 
 against the consequences- of a forged indorsement (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 customer's bills (ante, p. 207), 
 nor it seems is he bound to pay a bill, other than a cheque, 
 drawn on him by a customer (ante,^. 207); 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 (c) . If a banker is authorised by his customer 
 to accept bills fbr him against " clean bills of lading," the 
 banker is not responsible for the genuineness of the bills 
 of lading, if they appear to be in order (d) . 
 
 In consequence of the financial disturbance caused by 
 the outbreak of war in 1914, the Postponement of Pay- 
 ments Act, 1914 (4 & 5 Geo. 5, c. 11), was passed to 
 authorise the issue of Royal proclamations, postponing 
 the payment of bills and notes, and other obligations to 
 such extent and subject to such conditions as the proclama- 
 
 (jy) Holland, v. Manchester and Liverpool District Bank (1909), 14 
 Com. Cas. 241. 
 
 (z) Cf. Drew v. Nunn (1879), 4 Q. B. D. 661, O. A. (agency) ; 
 Bradford Old Bunk v. Sutclife (1918), 24 Com. Oas. 27, C. A. 
 (continuing guarantee). 
 
 (a) Kymer v. Laurie (1849), 18 L. J. Q. B. 218. 
 
 (2>) Cf. BobarU v. Tucker (1851), 16 Q. B. at p. 579; Bank of 
 Ei-ifland v. Vagllano, (1891) A. C. at p. 157, H. L. Aliter, perhaps, 
 under § 147 of the New York Negotiable Instruments Law. 
 
 (c) Forster v. Maclcreth (1867), L. B. 2 Ex. 163 ; cf . Emmanuel v. 
 Eobarts (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? 
 
 (d) Ulster Bank v. Synnott (1871), 5 Ir. B. Ch. 595; cf. Guarantee 
 Trust Co. of New York v. Hannay, (1918) 2 K. B. 623, O. A. ; 23 
 Com. Oas. 400, C. A. 
 
Cheques. 295 
 
 tion might specify. In pursuanoe of this Act the pro- § 75. 
 
 clamations of August 6, September 4, and September 30 
 
 were issued, and under them, on certain terms, the payment 
 of debts was postponed till November 4 (e). As the result 
 customers were relieved in general from paying their 
 debts, but were debarred from drawing on their pre- 
 moratorium balances during the currency of tbe mora- 
 torium. Bankers, of course, met their customers' 
 convenience so far as they prudently could do so. The 
 financial disturbance was so general that most other 
 countries passed moratory laws. As to the recognition of 
 foreign moratory laws in this country see notes to sect. 46, 
 and sect. 72(5). 
 
 (e) Cf. Manual of Emergency Legislation, tit. Postponement of 
 Payments; Mien v. L. G. and Westminster Bank (1915), 84 L. J. 
 K. B. 1286 (overdraft) ; Flack v. London and 8. W. Bank (1915), 31 
 T. L. R. 334 (dishonour of cheque); J. and P. Coats # Co., £td. v. 
 Disconto Q-eselUchaft (1915), 31 T. L. P.., 446 (interest on deposit 
 motes). 
 
296 Bills of Exchange Act, 1882. 
 
 §76: 
 
 Crossed Cheques. 
 General and 76. (1) Where a cheque bears across its face 
 
 special cross- ... , „ 
 
 ings defined, an addition of — 
 
 (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 
 
 (b) 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 1 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 (g) . The first statute recognizing 
 crossings was the 19 & 20 Vict. c. 25. This enactment 
 was [Supplemented by the 21 & 22 Vict. c. 79, in conse- 
 quence of a decision to the effect that the crossing was not 
 an integral part of the cheque, and that its fraudulent 
 
 (/) Bellamy v. Majoribanks (1852), 7 Exch. 389, at p. 402. The 
 practice originated in the Clearing House, and was afterwards adopted 
 outside. 
 
 (?) Smith v. Union Bank (1875), 1 Q. B. D. at p. 33, C. A. It 
 operated as a mere caution to the banker. 
 
Crossed Cheques. 297 
 
 obliteration, was not a forgery (h) . Then came the case of § 76. 
 
 Smith v. Union Bank(i). A cheque payable to bearer, 
 
 and crossed to the London and County 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 (k) . 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, reproduces its provisions with some 
 slight modifications. 
 
 By sect. 95, the provisions of the Act as to crossed 
 •cheques apply to dividend warrants; and by the Revenue 
 Act, 1883 (46 & 47 Vict. c. 65, s. 17),' post,, p. 392, 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." 
 
 The English system of crossing cheques does not appear 
 to have been adopted in the United States, and has only 
 recently been adopted in one or two continental states, 
 ■see, for instance, the French law of 1911. 
 
 77. (1) A cheque may be crossed generally or crossing by 
 specially by the drawer. *£-£. 
 
 (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 
 
 (h) Simmoruk v. Taylor (1858), 27 L. J. C. P. 248. 
 («) Smith v. Union Bank (1875), 1 Q. B. D. 31, C. A. 
 ; (k) Ibid. ■ 
 
298 Bills of Exchange Act, 1882. 
 
 § 77. specially, the holder may add the words " not 
 negotiable." 
 
 (5) Where a cheque is crossed specially, the 
 banker to whom it is crossed may again cross it 
 specially to another banker for collection (I). 
 
 (6) Where an uncrossed cheque, or a cheque 
 crossed generally is sent to a banker for collection,, 
 he may cross it specially to himself. 
 
 Sub-sect. (1) 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 r 
 ante. It includes an agent for collection (m) . 
 
 Sub-sect. (6) is new. It may protect the banker from 
 possible frauds by his clerks. Where an uncrossed cheque 
 is paid into a bank for collection and the banker crosses it,, 
 the cheque does not thereby become a crossed cheque within 
 the meaning of sect. 82 (»). As to the effect of crossing by. 
 a stranger, see Paget on Banking, ed. 2, p. 77. 
 
 Crossing a 78. A crossing authorized by this Act is a 
 
 material part » i ^ • t i 1 a 1 
 
 of cheque. material part ot the cheque : it shall not be 
 lawful for any person to obliterate, or, except 
 as authorized by this Act, to add to or alter the 
 crossing. 
 
 As to the effect of material alterations generally, see 
 sect. 64, ante. If a crossing is fraudulently altered or 
 obliterated it is a forgery: see sect. 1 of the Forgery Act, 
 1913 (3 &4 Geo. 5, c. 27). 
 
 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 
 
 (7) The words " to another banker for collection " have been sub- 
 stituted for the words " to another banker, his agent for collection." 
 
 (m) Akrokerri Mines v. Economic Bank, (1904) 2 K. B. at p. 472 j 
 9 Com. Gas. at p. 288. 
 
 (») Capital and Counties Bank v. Gordon, (1903) A. C. 240. 
 
Crossed Cheques. 29$ 
 
 to see who in such case oould have any effective remedy. § 78. 
 
 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 oould not set up that the 
 cheque was avoided by the alteration. See also note to 
 sect. 76. Where a cheque was paid in to the E. Bank for 
 collection, and they indorsed it specially to F. & Co., their 
 clearing-house hankers, adding the words "Acoount 
 E. Bank," it was held that this was not an addition to 
 the crossing, hut only a direction to the receiving bank as 
 to how the money was to be dealt with after receipt (o) . 
 
 79. (1) Where a cheque is crossed specially to Duties of 
 
 ,-\ ii ,i i . banker as 
 
 more than one banker, except when crossed, to an to crossed 
 agent for collection being a banker, the banker on ohe< i ne - 
 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 
 same (p), or pays a cheque crossed generally other- 
 wise 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 my 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- 
 
 (o) Akrokerri Mines v. Economic Bank, (1904) 2 K. B. at p. 472; 
 9 Com. Gas. at p. 288. As to the effect of the marking " a/o payeei„'.' 
 see post, p. 305. 
 
 Op) If a cheque is paid into a bank, and the bank gives its own 
 cheque in exchange, the cheque is paid within the meaning of this 
 section: Meyer § Co., Ltd. v. Sze Hai Tong Banking Co., (1913) 
 A. O. 847, P. O. 
 
30 " Bills of Exchange Act, 1882. 
 
 § 79- 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 sects. 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 
 payable to order was stolen from the payee. His indorse- 
 ment was forged, and the cheque was paid in contraven- 
 tion 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 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 (q) . 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 payable to bearer, Or 
 had been indorsed in blank by the payee before it was 
 stolen, and had got into the hands of a bond fide holder 
 for value, there would, it seems, be no remedy (r), unless 
 the cheque was crossed "not negotiable." 
 
 (?) ftobbett v. Pmkett (1876), 1 Ex. D. 368, at p. 372. 
 , (r) -ptnith v. Union Sanle (1875), 1 Q. B. D. 81, C. A. Is not the 
 * holder In due course " ihe " true owner "? Cf . Paget on Banking, 
 ed. 2, p. 80. 
 
Crossed Cheques. 301 
 
 80. Where the banker on whom a crossed § 79. 
 cheque is drawn, in good faith and without negli- Protection to 
 gence pays it, if crossed generally, to a banker, ^w where 
 and if crossed specially, to the banker to whom ohe( i u <! is 
 
 x _ •> ' crossed. 
 
 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 (s) . 
 
 81. Where a person takes a crossed cheque Effect of "not 
 which bears on it the words " not negotiable," he ne s°t iable " 
 
 ~ > crossing on 
 
 shall not have and shall not be capable of giving Voider. 
 a better title to the cheque than that which the 
 person from whom he took it had. 
 
 This reproduces the first part of sect. 12 of the Act of 
 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 still 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 
 
 (s) Ogden v. Benas (1874), L. R. 9 C. P. 513; cf. Patent 
 Gun Cotton Co. v. Wilson (1880), 42 L. J. O. P. 713, C, A,. 
 
302 Bills of Exchange Act, 1882. 
 
 § 81. 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 trades- 
 man 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 (t). 
 
 Protection to 82. Where a banker in good faith and without 
 baiter™* negligence (u) receives payment for a customer of 
 a cheque crossed generally or specially to him- 
 [Cf. 6Edw. 7, self {x), and the customer has no title or a defective 
 c. 1 , H . .] ^.^^ thereto, the banker shall not incur any lia- 
 bility to the true owner of the cheque by reason 
 only of having received such payment. 
 
 Illustrations. 
 
 1. A thief steals a crossed cheque payable to order, and inserts 
 his own name in the place of the indorsee's. He then takes it to 
 a Paris bank (where he has no acoount) to collect for him, and 
 they collect it through their London agents. The indorsee can 
 recover the amount from the Paris bank (y). 
 
 2. 0., having obtained by fraud a cheque which is crossed 
 " & Co., not negotiable," takes it to a bank, who cash it for him. 
 He has no account at that bank, but for many years they have 
 
 0) Fisher v. Roberts' (1890), Times L. R. p. 354, C. A. See the 
 section incidentally discussed in National Bank v. Silke, (1891) 1 
 Q. B. 435, C. A.; and by Lord Brampton in G. W. Railway v. London 
 and County Bank, (1901) A. O. 414, H. L. 
 
 («) See Hannan's Lake View v. Armstrong % Co. (1900), 5 Oom. 
 Cas. 188; Bavins v. London and South Western Bank, (1900) 1 Q. B. 
 270, at p. 272; Ross v. L. C. and Westminster Bank, (1919) 1 K. B. 
 678 (cheque payable to a public department, indorsed and paid in to 
 a private account) . 
 
 (x~) It must be crossed before it reaches his hands, Capital and 
 Counties Bank v. Gordon, (1903) A. O. 240, H. L. 
 
 (jy) Eleinwort v. Comptoir d'Escompte, (1894) 2 Q. B. 156, followed 
 Laoave v. Credit Lyonnais, (1897) 1 Q. B. 148; Matthews v. Bro-uin 
 $ Co. (1894), 63 L. J. Q. B. 494. 
 
Crossed Cheques. 303 
 
 been in the habit of cashing cheques for him. 0. is not a 8 82 
 -customer of the bank, and they are not protected by the section 
 in obtaining payment of the cheque (z). 
 
 3. A bank carries on business in London and Paris. A crossed 
 •cheque payable to order is drawn oft the London branch in favour 
 of G. in Paris. It is stolen from him, and his indorsement is 
 forged. In Prance the crossing of cheques is not recognized, and 
 the Paris branch cash the cheque for P., who appears to be the 
 last indorsee, though he has'no account there, and remit it to 
 London. C, the true owner, can maintain an action against the 
 bank for the conversion of the cheque. The section does not 
 protect them (a). 
 
 4. A. draws a crossed cheque in favour of C, and puts it in 
 the pillar-box. It is stolen therefrom, and gets into the hands of 
 X., who personates C, forges his signature, and opens an account 
 with a banker by means of the stolen cheque. The banker makes 
 jio inquiry as to X.'s position or character. If the banker collects 
 the cheque for X.'s account he is not protected (6). 
 
 5. A., who is the manager of an insurance broker's business, 
 has authority to draw cheques "per pro." for the purposes of that 
 business. He fraudulently draws a series of cheques "per pro." 
 -and pays them in to his own banking account. If his banker 
 ■collects them without inquiry he is guilty of negligence and is 
 not protected by this section (c). 
 
 6. Crossed cheque drawn payable to "T. 0. and others, or 
 bearer, a/c payee." T. C. and others are trustees of a fund. 
 The cheque is sent to the solicitor to the trust; who fraudulently 
 pays it in to his own account at the X. bank, where the trustees 
 have no account. If the X. bank collects the cheque it is guilty 
 of negligence and liable to the trustees for the conversion of the 
 cheque (d). 
 
 Sect. 82 reproduces as an independent section the proviso 
 to sect. 12 of the Act of 1876 (cheques crossed " not nego- 
 tiable "(e)). The section is amended or explained by 
 sect. 1 of the Bills of Exchange (Crossed Cheques) Act, 
 
 (a) Great Western Railway v. London and County Bank, (1901) 
 A. C. 414, H. L. 
 
 (o) Lacave v. Credit Lyonnais, (1897) 1 Q. B. 148. In 1911 a 
 law was passed in France authorising the crossing of cheques. 
 
 (b) Ladbroke $ Co. v. Todd (1914), 19 Com. Cas. 256. 
 
 (c) Morison v. Lond. County and Westminster Bank, (1914) 3 
 K. B. 356, at p. 368, O. A. But on the facts subsequent to this trans- 
 action it was held that the employer had ratified the action of the 
 manager. 
 
 (d) House Property Co. v. Lond. County and Westminster Bank 
 (1915), 84 L. J. K. B. 1846. 
 
 (e) This gives effect to Mathiessen v. London and County Bank 
 (1879), 5 O. P. D. 7, where it was argued that the proviso only 
 applied to cheques crossed " not negotiable," but it was held to apply 
 to all crossed cheques. 
 
304 
 
 Bills of Exchange Act:; 1882. 
 
 §82. 
 
 Customer. 
 
 ' ' Not nego- 
 tiable" 
 cheques. 
 
 Per pro. 
 cheques. 
 
 1906 (6 Edw. 7,'c. 17), post, p. 409, which enacts that. a. 
 - banker receives payment of a crossed cheque for a customer 
 within the meaning of sect. 82, notwithstanding that he 
 credits his customer's account with the amount of the 
 cheque before receiving payment thereof. 
 
 A person becomes a customer of a bank as soon as the 
 bank opens an account with him on which he can draw (/) . 
 
 Where a customer pays in to his banker the cheque of a 
 third party, the usual practice is for the banker at once to 
 credit the customer's account with the amount of the 
 cheque, and then, if the cheque is dishonoured,, to debit his 
 account with the amount thereof. But, as soon as the 
 banker credits his customer's account, he becomes a holder 
 for value of the cheque, whether crossed or not, and, that 
 being so, it was held by the House of Lords that he was 
 receiving payment of the cheque (if paid) on his own 
 account and not on behalf of the customer. He, therefore, 
 was not protected by sect. 82 if his customer's title was 
 defective (g) . As a result, the only safe course for the 
 banker would have been to put every cheque paid in by a 
 customer to a suspense account until it was cleared. To 
 obviate this very inconvenient method of dealing, the Bills 
 of Exchangei (Crossed Cheques) Act, 1906, post, p. 409, 
 was passed, and the banker is now protected notwith- 
 standing that he credits his customer's account with the 
 amount of a crossed cheque before he receives payment 
 thereof. 
 
 The mere fact that a cheque is crossed " not negotiable " 
 does not put the collecting banker on inquiry as to the. 
 title of the person who paid it in (h)~. 
 
 Secti 25 (procuration signatures) relates only to lia- 
 bilities on the instrument, and does not apply to collecting 
 bankers; but in determining whether the banker is or is 
 not guilty of negligence the fact that a cheque is drawn 
 or indorsed "per pro." is always an element to be taken 
 into consideration in connection with the other circum- 
 stances of the case (i) . 
 
 (/) Ladbroke v. Todd (1914), 19 Com. Oas. 256, at p. 261; of. 
 Great Western 'Railway v. London and County Bank, (1901) A. C 
 414, H. L. 
 
 (jr) Capital and Counties Bank v. Gordon, (1903) A. C. 240, H. L. ; 
 affirming ibid., (1902) 1 K. B. 242, C. A. 
 
 Qi) CrumpUn v. London Joint Stock Bank (1913), 19 Oom. Cas., 
 69. 
 
 (J) Morison v. London County and Westminster Bank,. (1914), 3i 
 
Crossed Cheques. 305 
 
 Of recent years the practice has sprung up of marking § 82. 
 
 cheques with the words " account payee." This is- not an — 
 
 addition to the crossing, but is a direction to the collecting '° payee " 
 banker that the proceeds of the cheque when collected are 
 to be placed to the credit of the payee specified in the 
 cheque (Jc). It has further been held (1) that the marking 
 " a/c payee " does not restrict the negotiability of the 
 cheque (I), and (2) that a cheque drawn payable to "J. C. 
 and others or bearer a/c payee " is not payable to bearer, 
 but should be credited to the account of " J . C . and others " 
 (illustration 6). If, then, the collecting banker pays a 
 cheque marked " a/c payee " otherwise than to that 
 account, he does so at his own risk, but presumably if he 
 does not keep the payee's account he may refuse to handle 
 the cheque. It is said that uncrossed cheques are some- 
 times marked "a/c payee," but the liability of the paying 
 banker in that case has not been decided. The status of 
 these cheques requires reconsideration. 
 
 In Germany and the countries which follow German law 
 crossing is not recognised, but cheques may be marked 
 " nur zur verrechnung." 
 
 K. B. 356, 368, C. A. ; cf . Bissell v. Fox # Co. (1884), 51 L. T. N. S. 
 663; Crumplin v. London Joint Stock Bank (1913), 19 Com. Cas. 69; 
 as to paying banker, see Charles v. Blackwell (1877), 2 C. P. D. 
 151, C. A. 
 
 (Jc) Morison v. Land. County and Westminster Bank, (1914) 3 
 K. B. at p. 373, C. A. 
 
 (0 National Bank v. Silke, (1891) 1 Q. B. 435, 0. A. 
 
 C. 
 
 20 
 
806 Bills of Exchange Act, 1882. 
 
 §83_ 
 
 PART IV. 
 
 Peomissory Notes. 
 Promissory 83. (1) A promissory note' is an uncondi- 1 
 
 note defined. , ; - \ ' \ . , J , , / 
 
 tional (m) promise in writing made by one person 
 to another (n) signed by the maker (0), engaging 
 to pay, on demand ( p) or at a fixed or determi- 
 nable future time (q), a sum certain (r) in money (s),, 
 to, or to the order of, a specified person (t) or to 
 bearer (u). 
 
 Illtjstbations. 
 
 1. An I. 0. TJ. containing a promise to pay may constitute a 
 note (x). 
 
 2. A promissory note containing the clause, No time given to, 
 or security from, or composition entered into with, either party/ 
 shall prejudice the rights of the holder to proceed against any 
 other payty," is a valid promissory note (y) . 
 
 The following are invalid as notes: > 
 
 3. " Borrowed of 0. 100Z. ' to account for on behalf of ike 
 X. Club at months' notice, if required." (Signed) T. B. (z). 
 
 (m) Colehan v. Cooke (1742), Willea, 393, at pp. 396, 397. Cf. 
 sect. 3 (1) and note thereto, ante. 
 
 (n) See Beeaham v. Smith (1858), E. B. & E. 442, andsub-seot. (2). 
 
 (o) As to signature by the hands of an agent, see sect. 91 (1), post, 
 and as to the seal of a corporation in lieu of signature, see sect. 91 (2), 
 post. 
 
 . (jo) As to what instruments are, in legal effect, payable on demand, 
 see sect. 10, ante. 
 
 (?) Colehan v. Cooke (1742), Willes, 393, at pp. 396, 397; see 
 sect. 11, and notes thereto, ante. 
 
 (r) See sect. 9, and notes thereto, ante. 
 
 (*) See sect. 3 (1), and note thereto, ante. 
 • (<) See sect. 8, and notes thereto, ante. 
 
 («) Cf . New York Negotiable Instruments Law, § 320, which, how- 
 ever, is confined to negotiable notes. 
 
 (x) Brooks v. Blhins (1836), 2 M. & W. 74. 
 
 (y) Kirkwood v. Carroll, (1903) 1 K. B. 531, O. A. 
 
 (z) White V. North (1849), 3 Exch. 689. 
 
Promissory Notes. 30" 
 
 4. "I. O. TJ. 20Z. for value received." (Signed) W.B. (o). s 83. 
 
 5. "Nine years after date I promise to pay 0. 100L, provided 
 
 X. shall not return to England, or his death be certified in the 
 meantime." (Signed) W. B. (6). 
 
 Comparing this section with the wider terms of sect. 33 
 of the Stamp Act, 1891, post, p. 398, it is clear that many 
 instruments may require to be stamped 1 as promissory 
 notes which have not the mercantile incidents of notes as 
 prescribed by the Act. A promissory note issued in the 
 United Kingdom must be on an impressed stamp: see 
 post, p. 400. An instrument invalid as a note may, of 
 course, be valid as an agreement (c) . See a promissory 
 note compared with a bill of exchange by Lord Mans- 
 field (d) and Parke, B. (e). By sect. 89, post, the pro- 
 visions of the Act relating to bills of exchange apply, 
 with certain modifications, to promissory notes. 
 
 No form of word's is essential to the validity of a note, Form of 
 provided the requirements of this section be fulfilled (/) ; words, 
 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 majkc 
 a note (g) . For instance, a banker's deposit note running, 
 " Received of Mr. 0. 1501. to be accounted for on 
 demand," and signed, will not be treated as a promissory 
 note(Tj). 
 
 An instrument promising to do anything in addition Note in 
 to the payment of money is clearly not a note (i), but it alternative, 
 has been held in the United States that a promissory 
 
 O) Gould v. Coombs (1845), 1 O. B. 543. 
 
 (b) Morgan v. Jones (1830), 1 O. & J. 162. 
 
 (c) Cf. White v. North (1849), 3 Exch. 689; Drury v. Macaulay 
 (1846), 16 M. & W. 146; Kirkwood v. Smith, (1896) W. N. 46 (16); 
 Balck v. PUcher (1909), 25 T. L. R. 497; Provincial Bank of Ireland 
 v. Fisher (1918), 2 Ir. R. 521, C. A. 
 
 (d~) Beylyn v. Adamson (1758), 2 Burr, at p. 676. 
 
 (e) Gibb v. Mather (1832), 2 Cr. & J. at pp. 262, 263, Ex. Oh. " 
 ■ (/) Hooper v. Williams (1848), 2 Exch. at p. 20. See English and 
 American cases reviewed in Currier v. Lochwood (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. 
 
 (g) Sibree v. Tripp (1846), 15 M. & W. at p. 29; cf. Jackson v. 
 Slipper (1869), 19 L. T. N. S. 640. 
 ••■ (A) Bopkins v. Abbott (1875), E. R. 19 Eq. 222. 
 
 (0 Sect. 3 (2), ante ; and Follett v. Moore (1849), 4 Exch. 410, at 
 p. 416; cf. Cook v. Satterlee (1826), 6 Odwem, 108, New York. , < 
 
 20 (2) 
 
308 Bills of Exchange Act, 1882 
 
 under 51. 
 
 § 83. 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 (k) . As the holder can demand money, and no 
 option is given to the 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 
 valid note (Z) . This question does not appear to have been 
 raised here. 
 
 ^ote to bearer J n England a promissory note for less than 201. 
 payable to bearer on demand must, by the Bank Notes 
 Act, 1826 (7 Geo. 4, c. 6, s. 10), be made payable where 
 issued, but may also be payable elsewhere. 
 
 Notetolearer A promissory note for less than 51. payable to beairer 
 on demand is, it seems, void in England. The legisla- 
 tion on 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 
 51. was unpaid), to specify the payee and conform to 
 other regulations. This Act was suspended by the Pro- 
 missory Notes Act, 1863 (26 & 27 Vict. c. 105), as to any 
 note "not being a note payable to bearer on demand.". 
 The suspension was continued annually till 1882, when 
 the Act was repealed by the Bills of Exchange Act. The 
 7 Geo. 4, c. 6, ss. 3, 5, and 7, appear to prohibit the 
 making or issue in England of any promissory note pay- 
 able to bearer on demand for less than 51. The Bank 
 Notes (No. 2) Act, 1828 (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." As to Scottish 
 bank notes, see further, 5 Geo. 3, c. 49. 
 
 Loan society Promissory notes given to registered loan societies are 
 notes. regulated by sects. 13 to 26 of the Loan Societies Act, 
 
 1840 (3 & 4 Vict. c. 110). 
 
 (k) Cf. Dinsmore v. Duncan (1874), 57 New York R. 573; of. New- 
 York Negotiable Instruments Law, § 24 (4). 
 (Z) Rostater v. Wilson (1862), 31 Barb. 307. 
 
Promissory Notes. 309 
 
 A bank note may be defined as a promissory note § 83. 
 
 issued 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 out by 
 Bramwell, B. (m). As to the restrictions on the issue in 
 England of bank notes by bankers other than the Bank 
 of England, see mite., p. 74. Bank of England notes 
 form part of the ordinary currency of the kingdom', and 
 therefore stand on a peculiar footing (n) . The statutory 
 privileges of the Bank of England 1 are expressly saved by 
 sect. 97 (3), post. 
 
 As to the nature of a bank post bill, see Forbes v. Bank post; 
 Marshall (o). bills - 
 
 An I. O. U. is not a negotiable instrument, and requires *• °- u - 
 no stamp. The production by the plaintiff of an I. 0. U. 
 signed by the defendant, though not addressed to anyone 
 by name, is evidence of an account stated between the 
 parties, but not of money lent (p) . As to Scotland, see 
 Bell's Principles, 9th ed. § 310. 
 
 The French law as to notes (billets a ordre) is contained Foreign laws, 
 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 recog- 
 nized: Nouguier, §§ 1565 — -1578. Gorman 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. 
 
 O) Lichfield Union v. Greene (1857), 26 L. J.. Ex. at p. 142. 
 
 (») See per lid. Mansfield, in Miller v. Race (1758), 1 Burr. 452; 
 1 Smith, L. C. ed. 12, p. 525; and per Jessel, M.R., in Buff ell v. Bank 
 of England (1882), 9 Q. B. D. at p. 563, C. A., and see also ante, 
 p. 11. 
 
 (o) Forbes v. Marshall (1835), 24 L. J. Ex. 305; of. Willis v. 
 Bank of England (1835), 4 A. & E. 21 ; and Hart on Banking, ed. 3 ; 
 p. 604, and 5 Geo. 3, c. 49. 
 
 (p) Taylor on Evidence, § 124; Fesenmayer v. Adcoch (1847), 16 
 M. & W. 449. As to contradicting such evidence, see Lemere v. Elliott 
 (1861), 30 L. J. Ex. 350; cf. Quarrier v. Colston (1842), 1 Phillips, 
 147 (money lent for gambling in Germany) ; German v. Yates (1915), 
 32 T. L. B. 52 (assignment by surrender and giving I. O. U. to a 
 different person). , , | ; 
 
310 
 
 Bills of Exchange Act, 1882. 
 
 §83. 
 
 Note payable 
 
 ike 
 
 to maker 
 order, 
 
 (2) An instrument in the form of a note pay- 
 able to maker's order is not a note within the 
 meaning of this section unless and until it is 
 indorsed by the maker. 
 
 Illustrations. 
 
 1. B. makes a note payable to his own order, and indorses it in 
 blank. This is a valid note payable to bearer (q). 
 
 2. B. makes a note payable to his own order, and indorses it to 
 0. This is a valid note payable to 0. or order (r) . 
 
 3. B., 0. and D. made a joint and several note payable to C. 
 and D. or order. This is a valid note. 0. and D. may sue B. 
 on his several liability («). 
 
 4. B. & Co. make a note payable to 0. & Co. or order. X. is 
 a partner in both, firms. C. & Oo. could not, before the Judica- 
 ture Acts, sue B. & Oo. on this note. But if 0. & Oo. indorsed 
 the note, the indorsee could sue (<). 
 
 See sect. 61, cmte, as to coincidence of right and liability 
 at maturity. An action between a partner and the firm, 
 or between two firms having a common member, was 
 impossible at common law, but such suits are now provided 
 for by E. S. C. Ord. XLVIII. r. 10. In Scotland a firm 
 has always been recognized as an artificial person. 
 
 Note contain- (3) A note is not invalid by reason only that it 
 
 collateral contains also a pledge of collateral security with 
 
 authority to sell or dispose thereof (u). 
 
 Would the right to the security pass with the instru- 
 ment? The question has been touched upon, but not 
 decided (a;) . In France the security follows the instru- 
 ment: Nouguier, § 715. The Belgian Code de Com- 
 merce, § 26, expressly enacts the same as to bills. 
 
 (ff) Hooper v. Williams (1848), 2 Exch. 13; Masters v. Baretto 
 (1849), 8 C. B. 433; Stevenson v. Brown (1902), 18 T. L. R. 268. 
 
 (r) Gay v. Lander (1848), 17 L. J. C. P. 286. 
 
 (a) Beecham v. Smith (1858), E. B. & E. 442. 
 
 (t) Lin&ley, 3rd ed. p. 219; cf. Neale v. Turton (1827), 4 Bing. 
 149. 
 
 («) Wise v. Charlton (1836), 4 A. & E. 786; cf. Towne \. Rice 
 (1877), 122 Massachus. E. 67; cf. New York Negotiable Instruments 
 Law, -§'24, and notes in Crawford's edition. 
 , (a) Storm v. Stirling (1854), 3 E. & B. 832. 
 
Promissoey Notes. 311 
 
 (4) A note which is, or on the face of it pur- § 83. 
 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 Vict. c. 97, s. 7. See sect. 4, ante, and 
 note thereto, where the term " British Islands " is defined 
 and the suhject is discussed. By sect. 89 (4), post, when 
 a foreign note is dishonoured protest thereof is unnecessary, 
 but for the purpose of charging a foreign party in his own 
 country it is prudent to protest it. 
 
 84. A promissory note is inchoate and incom- Delivery 
 plete until delivery thereof to the payee or neoes8 Fy- 
 bearer (y). 
 
 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. 
 
 85. (1) A promissory note may be made by joint and 
 two or more makers, and they may be liable Beveral notes ' 
 ; thereon jointly, or jointly and severally, accord- 
 ing to its tenor (s). 
 
 The acceptors of a hill can only be liable jointly, not 
 jointly and severally. A new maker cannot be added to 
 a joint and several note after its issue (a), and there cannot 
 be a series of makers liable severally, and not jointly 
 and severally. Nor can two makers be liable in the 
 alternative (&). But where an infant and his father make 
 a joint and several note for money advanced to the infant, „ 
 the infant is not liable, but the father is liable as the 
 principal debtor (c) . 
 
 (y) Chapman v. Cottrell (1865), 34 L. J. Ex. 186. 
 
 (a) Cf. Ex parte Money (1871), L. B. 7 Oh. 178. 
 
 (a) Gardner v. Walsh (1855), 5 E. & B. 83. 
 
 (£) Ferris v. Bond (1821), 4 B. & Aid. 679. 
 
 (c) Wauthier v. Wilson (1912), 28 T. L. K. 239, C. Aj 
 
s 12 Bills of Exchange Act, 1882. 
 
 § 85. A partner, as such, cannot bind his co-partners severally, 
 
 but by a joint and several note he may bind the firm 
 
 jointly (d) and himself severally (e). 
 
 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 {g) . Payment or satisfaction by one of the makers 
 of a joint and several note discharges it (h), but where 
 partners are jointly and severally liable on a note a com- 
 position 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 
 is signed by two or more persons it is deemed to 
 be their joint and several note (k). 
 
 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 (Z) . 
 
 In a case where B., X., and Y. were partners, and B. 
 made a note running, " 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 (w>) . 
 
 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. 
 
 ^demand 316 **6. (1) Where a note payable on demand has 
 been indorsed, it must be presented for payment 
 
 (d) Maolae v. Sutherland (1854), 3 B. & B. 1. 
 
 (e) Penkivil v. Connell (1850), 5 Exch. 381. 
 
 (/) King v. JBoare (1844), 13 M. & W. 494; Kendall v. Hamilton 
 (1879), 4 App. Cas. 504. 
 
 (g) Ibid.; and Be Davison (1884), 13 Q. B. D. at p. 53: of. Wegg 
 Prosser v. Evans, (1898) 1 Q. B. 108, C. A. 
 
 (h) Nicholion v. Eevill (1836), 4 A. & E. 675; Beaumont v. Great- 
 head (1846), 2 C. B. 494; Thome v. Smith (1851), 20 L. J. O. P. 71. 
 
 (0 Simpson v. Eenning (1875), L. E. 10 Q. B. 406. 
 
 (k) Monson v. JDrakeley (1873), 16 Amer. E. 74; cf. Ridd v. 
 Moggridge (1857), 2 H. & N. 568, dub. Pollock, C.B.; New York 
 Negotiable Instruments Law, § 36 (7). 
 
 u) Parsons on Bills, vol. 1, p. 247. 
 
 (m) Ess parte Buckley (1845), 14 M. & W. 469. 
 
Promissory Notes. 313 
 
 within a reasonable time of the indorsement. If it § 86. 
 he not so presented the indorser is discharged (n). 
 
 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, 
 Tegard shall be had to the nature of the instru- 
 ment, the usage of trade, and the facts of the 
 particular case. 
 
 Reasonable time appears to be a mixed question of 
 law and fact. Regard must be had to the nature of the 
 instrument as a continuing security, e.g., ten months may 
 not be an unreasonable time (o) . 
 
 (3) Where a note payable on demand is nego- 
 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 ( p ). 
 
 This sub-section negatives the application of sect. 36 (3), 
 ■ante, 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 
 security, e.g., it has been held that where a note on 
 demand was indorsed eight months after its date, the 
 
 O) Chartered Bank v. Dickson (1871), L. B. 3 P. O. 574; see at. 
 p. 579. 
 
 O) Ibid, at pp. 579 and 584. 
 
 (p) Bee Brooks v. Mitchell (1841), 9 M. & W. 15; Glasscock v. Balls 
 (1889), 24 Q. B. D. 13, O. A. 
 
31 * Bills of Exchange Act, 1882. 
 
 § 86. indorsee took it subject to all equities attaching to it. It: 
 " is to be noted that all parties resided in the same place (q) . 
 
 Presentment 87. ( 1 ) Where a promissory note is in the body 
 
 of note for . „ . v / . -, > • i i -. 
 
 payment to ol it made payable at a particular place, it must 
 be presented for payment at that place in order 
 to render the maker liable (r). In any other case, 
 presentment for payment is not necessary in order 
 to render the maker liable (s). 
 
 Illustrations. 
 
 1. A note is made payable to 0. or order on demand. The- 
 holder can sue the maker without proving any presentment or 
 demand (i). <i 
 
 2. B. makes a note payable to his own order and signs it. 
 Below his signature are the words " Payable at the Union Bank,. 
 London." He then indorses the note in blank. The holder can 
 sue the maker, B., without proving presentment (u). 
 
 Compare sect. 52 (1) and' notes thereto as to present- 
 ment 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 presented on that day (a;) . 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 {$) . 
 
 (?) Eerrick v. Woolverton (1870), 41 New York R. 581; cf. New- 
 York Negotiable Instruments Law, § 131. 
 
 (r) Spindler v. Grellett (1847), 1 Exch. 384 (non-negotiable note);. 
 Sands v. Clarke (1849), 8 C. B. 751; Vander Donckt v. Thellusson 
 (1849), 8 C. B. 812; Randall v. Thorn $ Co. (1878), W. N. p. ISO, 
 C. A. 
 
 (s) Price v. Mitchell (1815), 4 Camp. 200; Exon v. Russell (1816),. 
 4M. & S. 507; Williams "v.' Waring (1829), 10 B. & C. 2 (place of 
 payment: indicated by way of memorandum). 
 
 •(*) Cf. Walton v. Mascall (1844), 13 M. & W. at pp. 455, 458; see,. 
 too, Norton v. Ellam (1837), 2 M. & W. at p. 464; and Maltby v. 
 Murrels (1860), 5 H. & N. at p. 823. 
 
 (a) Masters v. Saretto (1849), 8 C. B. 433. 
 
 (a;) See also RamehurnMullick v. Luchmeechund Radakissen (1854),, 
 9 Moore, P. C. at p. 70; Gordon v. Kerr (1898), 25 Ot. of Sess. Cas". 
 570. 
 
 (y) Norton v. Ellam (1837), 2 M. & W. 464. 
 
Promissory Notes. 31§ 
 
 (2) Presentment for payment is necessary in § 87. 
 order to render the indorser of a note liable (2). To oharge 
 
 (3) Where a note is in the body of it made indorser - 
 payable at a particular place, presentment at that 
 place is necessary in order to render an indorser 
 liable (a) ; but when a place of payment is indi- 
 cated by way of memorandum only, presentment 
 
 at that place is sufficient to render the indorser 
 liable (b), but a presentment to the maker else; 
 where, if sufficient in other respects, shall also 
 suffice (c). 
 
 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, <mte. As to excuses for non-presentment and 
 delay, see sect. 46, wite. 
 
 88. The maker of a promissory note by making Liability of 
 
 •i maker. 
 
 (1) Engages that he will pay it according to its 
 tenor (d) ; 
 
 (2) Is precluded from denying to a holder in 
 due course (e) the existence of the payee and 
 his then capacity to indorse (/). 
 
 The maker of a promissory note is the principal debtor 
 on the instrument (g) . 
 
 (z) Cf\ Gibb v. Mather (1832), 2 Or. & J. at pp. 262, 263.; Britt v. 
 Zawson (1878), 22 Hun. R. 123, New York, joint and several note, 
 (o) Roche v. Campbell (1812), 3 Oamp. 247. ' i 
 
 (Z>) Saunderson v. Judge (1795), 2 H. Bl. 510. 
 (o) Ibid.; and see Masters v. Baretto (1849), 8 C. B. 433. 
 
 (d) Story on Notes, § 118; Walton v. Mascall (1844), 13 M. & W. 
 at p. 458. 
 
 (e) See " holder in due course " defined by sect. 29, ante. 
 
 (f) Drayton v. Bale, (1823), 2 B. & C. 293, bankrupt payee; Lane 
 v. Kreckle (1869), 22 Iowa R. 399; cf. sect. 54, acceptor's estoppels. 
 New York Negotiable Instruments Law, § 110. 
 
 (y) Of. Chartered Bank v. Dickson (1871), L. R. 3 P. O. at p. 580. 
 
316 Bills of Exchange Act, 1882. 
 
 § 88. 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 
 liability of the drawer of a bill of exchange (h) . 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 (i) . The dis- 
 tinctions that exist between maker and acceptor arise 
 from this. The acceptor is not the creator of a bill, his 
 contract is supplementary, while the maker of a note 
 originates the instrument. Hence (a) a note cannot be 
 made conditionally (k), while a bill may be accepted con- 
 ditionally; (b) the provisions of sect. 19 (2), ante, 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 (I) ; (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 (mi) . See also sect. 89 
 — Damages. The measure of damages against the maker 
 of a note would in general be the same as against the ac- 
 ceptor of a bill, as to which see sect. 57, ante. 
 
 rf P Part a ri n 89. (1) Subject to the provisions in this part, 
 to notes. and except as by this section provided, the pro- 
 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 
 
 Qi) Gwinnell v. Herbert (1836), 6 N. & M. 723. 
 
 (*) Heylyn v. Adamson (1758), 2 Burr, at p. 678, Ld. Mansfield; 
 and sect. 89 (2). 
 
 (ft) See sect. 83, ante. 
 
 (0 Cf. Gibb v. Mather (1832), 2 Or. & J. at pp. 262, 263; flmblin 
 v. Dartnell (1844), 12 M. & Ttf. 830. 
 
 (m) Cf. Bishop v. Young (1800), 2 B. & P. at p. 83, Lord Eldon. 
 
Pkomissoky Notes. 817 
 
 shall be deemed to correspond with the drawer of § 89. 
 an accepted bill payable to drawer's order (re). 
 
 (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. 
 
 (4) Where a foreign note is dishonoured, protest Protest of 
 
 , i n • foreign note 
 
 tnereoi is unnecessary. not required. 
 
 By the statute 3 & 4 Anne, o. 8, s. 1, promissory notes 
 were made negotiable "in the same manner as inland 
 bills of exchange are or may be by the custom of 
 merchants." That Act, however, was, it seems, merely 
 declaratory (o), and is repealed by this Act. 
 
 Sub-sect. (4) is declaratory (p), 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, as to 
 foreign bills. As to conflict of laws, see sect. 72 (3), ante. 
 The sub-section appears to apply only to foreign notes 
 dishonoured in the British Islands. Cf, sect. 4, ante, as 
 to inland and foreign bills. 
 
 (») See Beylyn v. Adamson (1758), 2 Burr, at p. 678, per Lord 
 Mansfield; cf. Re George (1890), 44 Ch. D. at p. 631. 
 
 (o) See Goodvsin v. Robarts (1875), L. B. 10 Ex. at p. 350, per 
 Coekburn, O.J. 
 
 ft?) Bonar v. Mitchell (1850), 5 Exch. 415. Cf . New York Negoti- 
 able Instruments Law, § 189. 
 
318 Bills of Exchange Act, 1882. 
 
 § 90 
 
 PART 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 negligently 
 or not. 
 
 See sect. 29, ante, defining "holder in due course," and 
 sect. 59, ante, defining " payment in due course." Of. 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 (q) \ 
 and this principle seems to be adopted by sect. 9 of the 
 Indian Negotiable Instruments' Act. In 1834 the Court 
 of King's Bench held that nothing short of gross negli- 
 gence could defeat the title of a holder for value (r) . Two 
 years later Lord Denmian states it as settled law that bad 
 faith alone could prevent a holder for value from ret 
 covering. Gross negligence might be evidence of bad 
 faith, , but was not conclusive 'of it (s) . This principle 
 has never since heen shaken in England, and it seems now 
 firmly established in the United States (t). 
 
 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 
 
 (?) Gill v. Cubitt (1824), 5 D. & B,. 324. 
 
 (?•) Crooh v. Jadis (1834), 5 B. & Ad. 909. 
 
 (s) Goodman v. Harvey (1836), 4 A. & E. at p. 876; cf. Uther v. 
 Rich (1839), 10 A. & E. 784. 
 
 (f) Murray v. Lardner (1864), 2 Wallace, at p. 121, Sup. Ct. 
 U. S.; Chapman v. Rose (1874), 56 New York E. at p. 140. 
 
Good Faith. 319 
 
 but necessary principle the rules of the common law arei Test of bona 
 
 made to bend. . . Negligence in the maker of such ■ ^ des - 
 
 an instrument makes no difference in his liability to an 
 honest holder for value. The instrument may be lost by 
 the maker without his negligence, or stolen from 1 him, still 
 he must pay; the -negligence of the holder, on the other 
 hand, makes no difference in his title. However gross 
 the holder's negligence, if it stop short of fraud, he has a 
 title" (u). 
 
 The whole subject was fully discussed in a case in the 
 Court of Appeal, where 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 
 maintaining 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 mitda fides ; and the question in this 
 case is whether the surrounding circumstances accom- 
 panying the negligence or carelessness of the holder were 
 such as to affect him with notice of the fraudulent character 
 of the transaction out of 'which these bills originated " (a;). 
 Every case must be determined on its own merits. Good 
 faith or bad faith is a question of foot depending on the 
 circumstances of the individual case (y) . 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 know- 
 ledge 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 
 
 (u) Swan. v. North British Australasian Co. (1863), 2 H. & O. 184, 
 
 O) Re Gomersall (1875), 1 Ch. D. at p. 146, O. A. 
 
 (y) Peacock v. Rhodes (1781), 2 Doug. 633, per Dord Mansfield. 
 
320 
 
 Bills of Exchange Act, 1882. 
 
 80. 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 circumstances that might have led a man 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 defenoe> 
 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, with other evidence, be good evidence 
 upon the question whether he did know there was some- 
 thing 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 ho is entitled to recover. But if the facts and cir- 
 cumstances 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 b un- 
 derer, 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 dishonesty " (2). 
 
 (z) Jones v. Gordon (1877), 2 App. Cas. at p. 629, H. L. 
 
Signatures. 321 
 
 91. (1) Where, by this Act, any instrument or § 91 
 writing is required to be signed by any person, it Signature. 
 is not necessary that he should sign it with his 
 own hand, but it is sufficient if his signature is 
 written thereon by some other person by or under 
 his authority. 
 
 Illustrations. 
 
 1. Bill payable to O.'a 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 O.'s indorsement was written by his daughter in 
 the presence and by the direction of- his wife. This is 
 sufficient (a) . 
 
 2. Bill addressed to B., and accepted in his name. It is shown 
 that X., who wrote the acceptanoe, 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 (6). 
 
 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 
 indorse it in O.'s name (c). 
 
 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. (d). 
 
 5. 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 (e). 
 
 6. An authority to a partner in a non-trading firm to draw 
 cheques does not authorize drawing post-dated cheques, which for 
 most purposes are equivalent to bills payable after date (/) . 
 
 See further sect. 23, signature in assumed name, or 
 firm name; sect. 24, forged 1 or unauthorized signature; 
 sect. 25, procuration signature; sect. 26, signature by 
 agent or representative. The cases above cited seem to 
 show that it is immaterial by what hand the signa- 
 ture is attached if there be authority to sign, express or 
 implied: but that where the authority is express it must 
 
 («) Lord v. Hall (1849), 8 C. B. 627; cf. Lindus v. Bradwell 
 (1848), 5 O. B. at p. 591. 
 
 (6) Cf. Morris v. Bethell (1869), L. E. 5 O. P. at p. 51. 
 
 (c) Harrop v. Fisher (1861), 30 L. J. O. P. 283. 
 
 Id) Cf. Prescott v. Flinn (1832), 2 Bing. at p. 22; and Indian 
 Act, s. 27. 
 
 (e) Hogarth v. Wherley (1875), L. B. 10 C. P. 630; and Indian 
 Act, s. 27. 
 
 (/) Forster v. Machreth (1867), L. Pu. 2 Ex. 163 (firm of solicitors). 
 
 c. 21 
 
322 
 
 Bills of Exchange Act, 1882. 
 
 §91- 
 
 Signature by 
 agent. 
 
 What a 
 
 sufficient 
 
 signature. 
 
 be strictly construed 1 . In Lord v. Kail (Illust. 1) (g), 
 Maule, J., says: " The question is whether upon the. evi- 
 dence 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 that the wife had the 
 general management of her husband's business. And 
 when he authorized her to draw, accept, and indorse bills 
 in his name, that may fairly be extended to authorizing 
 her to select some person, pro hoc 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 (fi) ; and it has been, 
 suggested that a lithographed or stamped signature might 
 be sufficient (i) . A signature made by another person, but 
 attested by mark, is sufficient (k). Where a note ran, " I, 
 William Smith, promise to pay, &c." instead'of " I promise 
 to pay," withthe signature below, it was held sufficiently- 
 signed (I), though such a signature is inconvenient and 
 irregular. Where a statute requires an ordinary contract 
 or document to be signed, a mere 'mark (to), or initials (n), 
 or a stamp (©), if intended as signatures, are sufficient; and 
 it is immaterial in .what part of the document the nam© is 
 introduced, provided it govern the whole. But legal, 
 analogies must be applied with caution to bills which are 
 
 (g) Lord v. Ball (1849), 8 C. B. at p. 630. 
 
 (A) Geary v. Physic (1826), 5 B. & C. 234. 
 
 (j) See Ex parte Birmingham Bank (1868), L. B. 3 Ch. App. at 
 pp. 653, 654. 
 
 (ft) George v. Surrey (1830), M. & M. 516. 
 
 (I) Taylor v. Dobbins (1719), 1 Stra. 399; dr. Ruff v. Webb (1794), 
 1 Esp. 129. 
 
 (m) Baker v. Dening (1838), 8 A. & E. 94. 
 
 (») Caton v. Caton (1867), L. E. 2 H. L. 143. 
 
 (o) Saunderson v. Jackson (1800), 2 B. & P. 238. • 
 
Signatures. 323 
 
 the creation of custom, and where it is of the utmost § 91. 
 
 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 (p), and the same was held as to a person whoi 
 indorsed by mark, viz., by writing the figures, 1, 2, 3 (q). 
 By German Exchange Law, Art. 94, signature by mark 
 is insufficient unless made before a notary. Signature 
 
 The object of a signature is to authenticate a document, ^udas t by 
 Where, then, a person is induced by fraud to sign a bill nature of 
 or note under the belief that he is signing a wholly document, 
 different instrument, his signature is null and void, 
 provided that in so signing he acted without negligence. 
 Thus: — 
 
 1. D., an old man with enfeebled sight, is induced to 
 sign his name on the hack of a bill, by being told that it 
 is a railway guarantee which he had promised to sign. 
 The bill is negotiated to a holder in due course. D. is not 
 liable as an indorser (r) . 
 
 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. (s). 
 
 3 . B . , a young man inexperienced in business, is induced 
 by a friend in whom he has confidence to sign a promissory 
 note as joint maker, under the belief that he is simply 
 signing as an attesting witness. Negligence is negatived. 
 The payee, who takes the note in good faith and for value, 
 eannot recover on it from B. (t). 
 
 In Foster v. Mackinnon, Byles, J., says: — " The defen- 
 dant, 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, 
 
 (p) Merchants' Bank v. Spioer (1831), 6 Wend. 443. 
 (q) Brown v. Butchers' Bank (1844), 6 Hill. 443. 
 (r) Foster v. Mackinnon (1869), L. R. 4 C. iP. 704. 
 (s) Griflths v. Kellog (1876), 20 Amer. B. 48. 
 (t) Lcicls v. Clay (189'V ^ Times L. R. 149 
 
 21 (2) 
 
324 Bills of Exchange Act, 1882. 
 
 § 91. or on the fly-leaf of a book, and there had already been 
 
 without his knowledge a bill of exchange or promissory 
 
 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 con- 
 tract" (w). Frauds of this nature are -more frequent in 
 the United States than in England, owing to the absence 
 of stamp laws. A man's signature is obtained' for some 
 pretended purpose, and then a promissory note is over- 
 written. 
 
 Seal of cor- (2) j n fae case of a corporation, where, by this 
 
 poiation as v ' . ... . 
 
 signature. 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 (x) . It was never doubted 
 that a corporation (otherwise competent) oo ; uld be bound 
 by a bill or note duly signed on its behalf; and this was 
 one of the recognized exceptions to the rule that a corpora- 
 tion can only contract under seal (y) . It had further been 
 held that a note made by the directors of a company, which 
 was binding on them 1 personally, was not affected by the 
 addition of the corporate seal (z) . In New York it was 
 
 O) Foster v. MacKinnon (1869), L. R. 4 C. P. 704, see at p. 712. 
 (a) Crouoh v. CrSdit Fonder 0-873), L. R. 8 Q. B. at pp. 382, 
 383. 
 
 {y) Grant on Corporations, p. 61. 
 
 (z) Buttons. Marsh (1871), L. R. 6 Q. B. 361. 
 
Signatures. 325 
 
 formerly held that a promissory note under seal was not § 91. 
 negotiable unless issued by government (a) . 
 
 The usual form of signature for a corporation is a pro- Signature of 
 curation signature. As regards companies under the Com- oor P oratio11 
 panics (Consolidation) Act, 1908, the form in which a bill ° r 00m P an y- 
 or note must be drawn, made, indorsed, or accepted so as to 
 bind the company is regulated by sects. 63 and 77 of that 
 Act. See those sections set out in Appendix, post, p. 409, 
 and cases thereon. In order to determine whether a com- 
 pany or other corporation is liable ion 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 
 sufficient in form' to bind the company ? 3 . Was the sig- 
 nature placed there by a person having authority to sign 
 bills for the company? Is it immaterial that a person who 
 acts within the scope of his authority in signing bills ex- 
 ceeds or contravenes private instructions (b) ? See further, 
 sect. 22, and notes thereon, ante. 
 
 When a company, under the Companies (Consolidation) Liquidators. 
 Act, 1908, is voluntarily wound up, and two or more liqui- 
 dators are appointed, a bill must be signed by at least two 
 liquidators in order to bind the company (e) . 
 
 92. Where, by this Act, the time limited for Computation 
 doing any act or thing is less than three days, in 
 reckoning time, non-business days are excluded. 
 
 "Non-business days" for the purposes of this 
 Act mean — 
 
 (a) Sunday, Good Friday, Christmas day : 
 
 (b) A bank holiday under the Bank Holidays 34&35Viot. 
 Act, 1871, or Acts amending it: 
 
 O) Merritt v. Cole (1876), 9 Hun. R. 98; but see now § 25 of the 
 New York Negotiable Instruments Law, and notes in Crawford's 
 edition. 
 
 (b) He Land Credit Co. (1869), L. R. 4 Ch. 460. As to the powers 
 of de facto directors, of. Mahony v. East Eolyford Mining Co. (1875), 
 L. R. 7 H. L. 869 l . As to the authority of a manager in a foreign 
 country, see Re Cunningham <f Co., Limited (1887), 36 Oh. D. 532. 
 
 (c) Ex parte Agra Bank (1871), L. R. 6 Ch. 206. See 
 sect. 151 (2) (d) of the Act of 1908 as to liquidators' powers as to 
 bills and notes, and sect. 184 as to liquidators in voluntary winding up. 
 
 17. 
 
326 Bills of Exchange Act, 1882. 
 
 § 92. (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. 67 (2) as to pre- 
 sentment to the acceptor for honour. 
 
 See, the Bank Holidays Acts, in the Appendix, post, 
 p. 388, and sect.' 14(1), ante. 
 
 When noting 93, For the purposes of this Act, where a bill 
 
 equivalent to . . - . , . , . 
 
 protest. or note is required to be protested within a speci- 
 
 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 
 formal protest may be extended at any time there- 
 after as of the date of the noting. 
 
 This section affirms the rule laid down in Geralopulo 
 v. Wieler (d). The noting is in .fact an incipient protest, 
 and " is unknown in law as distinguished from, the protest. 
 The notary having made his minute, draws up the protest 
 at his leisure" (e). 
 
 As to the application of this section, see sects. 51, 65, 
 67, 68. 
 
 Protest when 94. Where a dishonoured bill or note is 
 accessible. authorized or required to be protested, and the 
 services of a notary cannot be obtained at the 
 place where the bill is dishonoured (/), any house- 
 holder or substantial resident of the place may, in 
 the presence of two witnesses, give a certificate, 
 signed by them, attesting the dishonour of the 
 
 (d) Geralopulo v. Wieler (1851), 20 L. J. C. P. 105; of. Leftley v. 
 Mills (1791), 4 T. B. at p. 175. 
 
 (e) Selviyn, N. P., 11th ed. p. 381. 
 
 (/) See Somerville v. Aaronson (1898), 25 R. 524 (Scotland). 
 
Savings, &c. ' 327 
 
 bill, and the certificate shall in all respects operate § 94. 
 as if it were a formal protest of the bill (g ). 
 
 The form given in Schedule 1 to this Act may- 
 be used with necessary modifications, and if used 
 shall be sufficient. 
 
 For the form ref eared to, see post, p . 333 . The enact- 
 ment contained in this section is an extension of the 
 inoperative provision of the repealed 9 Will. 3, c. 17, as to 
 inland bills. 
 
 95. The provisions of this Act as to crossed Dividend 
 cheques shall apply to a warrant for payment of be^rossed™ 7 
 dividend. 
 
 For the provisions as to crossed cheques, see sects. 76 
 — 82, ante. The corresponding. provision of the Crossed 
 Cheques Act, 1876, s. 3, applied .only to the dividend 
 warrants of the Bank of England and Bank of Ireland. 
 The present enactment applies to all dividend warrants. 
 
 [96. The enactments mentioned in the second Repeal, 
 schedule to this Act (ft) 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.]] 
 
 This section and the schedule of repeals, having done 
 their work, are now repealed as spent by the Statute Law 
 Revision Act, 1898. 
 
 (ff) New York Negotiable Instruments Law, § 262, reproduces this 
 provision in wider terms. 
 (h) Post, p. 334. 
 
328 
 
 Bills op Exchange Act, 1882. 
 
 §97. 
 
 Savinsfs. 
 
 Bankruptcy 
 law. 
 
 Common law. 
 
 Custom of 
 trade. 
 
 97. (1) The rules in bankruptcy relating to 
 bills of exchange, promissory notes, and cheques, 
 shall continue to apply thereto, notwithstanding 
 anything in this Act contained. 
 
 This provision was intended to preserve such rules as the 
 rule against double proof (»), the rule as to proof in respect 
 of bills not yet due (fc), 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 (7) . 
 
 (2) The rules of common law, including the 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. 
 
 This provision preserves a foreign drawer's right to 
 prove for re-exchange against an English acceptor (m). 
 So, too, it preserves the general rules of law relating to 
 estoppels (n), and the rules of private international law, 
 e.g., the rule according to which the transfer of personal 
 property is governed by the law of the country in which 
 the property is transferred (o) . 
 
 Questions relating to bills, when not concluded by 
 authority, must as_ heretofore be determined by the usage 
 of trade, if such there be (p). The existence, nature, and 
 scope of a given usage is a question of fact (q) . A general 
 usage once incorporated into a judicial decision becomes 
 
 (i) Banco de Portugal v. Waddell (1880), 5 App. Cas. 165. 
 (k) Wood v. De Mattos (1865), L. E. 1 Ex. 91. 
 0) Ex parte Newton, Ee Bunyard (1880), 16 Ch. D. 330, O. A. 
 (ot) Ex parte Sobarts, Se Gillespie (1885), 16 Q. B. D. 702; 
 affirmed, 18 Q. B. D. 286, C. A 
 
 (») Smith v. Prosser, (1907) 2 K. B. at g. 746, C. A.; at} London 
 int Stock Bank v. 
 in drawing cheque) . 
 
 Joint Stock Bank v. MacMillan, (1918) A. C. 777, H. L. (negligence 
 
 :i: 
 
 (o) Embiriaos v. Anglo- Austrian Bank, (1904) 2 K. B. 870; 
 affirmed, (1905) 1 K. B. 677, C. A. See, further, notes to sect. 72 (2), 
 ante. 
 
 (p) Goodwin v. Bobarts (1875), L. B. 10 Ex. 337, Ex. Ch. 
 
 (?) Ibid. 
 
Savings. 329 
 
 part of the law merchant, and evidence of custom! to § 97. 
 contradict it is inadmissible (r). Thus: — 
 
 1. Bill indorsed "Pay C," omitting the words " or 
 order." The Court of King's Bench having decided that 
 such hills are still negotiable by indorsement, evidence 
 that by custom they are not negotiable was held inad- 
 missible (s). 
 
 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 (t). 
 
 3. Action by customer (before the Stamp Act, 1870) 
 against banker for not honouring a cheque. The banker 
 may show that the cheque was marked " post-dated," and 
 that it was the custom of bankers in the City of London 
 not to honour cheques which are marked " post-dated " («) . 
 
 Goodwin v. Robafjs (x) is important as showing that the 
 novelty of a general usage is no objection to its being 
 incorporated into the law merchant. 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 difficult to say when this notoriety is acquired (y) . 
 When both authority and custom are silent, foreign law is 
 usually resorted to as a guide. After referring to the 
 ■cosmopolitan character of the law merchant in reference 
 to bills, Lord 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 
 •continually, in the English Courts, upon the question what 
 is the general law, cite Pothier, and we cite Scotch cases 
 
 0) Ibid, at p. 357; and of. Brandao v. Barnett (1846), 3 C. B. at 
 p. 530, H. L. ' 
 
 (s) Edie v. East India Co. (1761), 2 Burr. 1216. See now sect. 8, 
 
 (0 Suse v. Ponipe (1860), 30 L. J. C. P. 75. 
 
 (u)- Emanuel v. Robarts (1868), 9 B. & S. 121. Qu. since the 
 Stamp Act, 1870, if cheque be not presented before its nominal date; 
 and see sect. 13 (2), ante. 
 
 (x) Goodwin v. Sobarts (1875), L. K. 10 Ex. 337, thereby to some 
 extent overruling Grouch v. Credit Fonder (1873), L. E. 8 Q. B. 
 at p. 386. See at p. 354, where the practice of a particular trade is 
 ■distinguished from a general custom. Affirmed by House of Lords, 
 1 App. Cas. 476. 
 
 (y) Cf. Ex parte Turqimnd (1885), 14 Q. B. D. 636, at p. 645,0. A. 
 
330 
 
 Bills of Exchange Act, 1882. 
 
 §97. 
 
 Ambiguous 
 instruments. 
 
 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" (z). 
 
 When the terms of a bill are ambiguous, the' construc- 
 tion most favourable to the full validity of the instrument 
 must be followed (a) . Thus — 
 
 1. An acceptance will, if 'possible, be construed as abso- 
 lute, not qualified, and a mere memorandum, inconsistent 
 with such construction, is to be rejected as being no part 
 of the acceptance (6). 
 
 2. The address to the drawee will be read in with the 
 acceptance, ut res miagis vculmt (c) . 
 
 3. Note in the form " I promise not to pay." The word 
 " not " will be rejected (d) . 
 
 Savings. (3) Nothing in this Act or in any repeal effected 
 
 thereby shall affect — 
 
 33 & 34 Vict. (a) The provisions of the Stamp Act, 1 870, or 
 Acts amending it, or any law or enactment 
 for the time being in force relating to the 
 revenue : 
 
 25 & 26 Vict. 
 u . 89. 
 
 See the material provisions of the Stamp Act, 1891, as. 
 amended to date, set out post, p. 394. 
 
 (b) The provisions of the Companies Act, 1862,. 
 or Acts amending it, or any Act relating 
 to joint stock banks or companies : 
 
 See sects. 63 and 77 of the Companies (Consolidation) 
 Act, 1908, set out post, p. 409. 
 
 (z) M'Lean v. Clydesdale Bank (1883), 9 App. Cas. at p. 105. 
 Cf . Scaramanga v. Stamp (1880), 5 O. P. D. at p. 303, as to American. 
 decisions. 
 
 (o) Mare v. Charles (1856), 5 E. & B. atp. 981, Ld. Campbell. 
 
 (b) Fanshawe v. Peet (1857), 26 L. J. Ex. 314; and cf. Stone v.. 
 Metcalfe (1815), 4 Camp. 217 ; Fitch v. Jones (1855), 5 E. & B. at 
 p. 246; Decroim v. Meyer (1890), 25 Q. B. D. 343, C.A. 
 
 (c) Mare v. Charles (1856), 5 E. & B. 978. 
 
 (d) Sussel v. Langstaffe, cited Bayley on Bills, 6; and Simpson v. 
 Vaughan (1739), 2 Atkyns, 30. 
 
Savings. 381 
 
 (c) The provisions of any Act relating to or § 97. 
 confirming the privileges of the Bank of Bank of ~ 
 England or the Bank of Ireland respectively : irefand. ° r 
 
 See restrictions on issue of bank notes, ante, p. 74. 
 
 (d) The validity of any usage relating to divi- Dividend 
 dend warrants, or the indorsement thereof. 
 
 This provision was introduced in committee. It appears 
 that when a dividend warrant was payable to the order of 
 two or more persons, the practice then was to pay it on the 
 indorsement of any one of them. As to ordinary bills and 
 notes, see sect. 32 (3), ante. See further as to dividend 
 warrants, post, p. 373. 
 
 98. Nothing in this Act or in any repeal Saving of 
 effected thereby shall extend or restrict, or in diUg^noe in 
 any way alter or affect, the law and practice in Sootland - 
 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 (e). 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; 
 Thorburn'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), commonly known as Keating's Act. This enact- 
 ment 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 construction 
 enactment repealed by this Act, the Act or docu- Acts,°&c er 
 ment shall be construed, and shall operate, as if 
 
 it referred to the corresponding provisions of this 
 Act. 
 
 O) M'Neill v. Innes (1917), 54 Scott. Law Reporter, 513. 
 
332 
 
 Bills of Exchange Act, 1882. 
 
 §100. 
 
 Parole 
 evidence 
 allowed in 
 certain ' 
 judicial pro- 
 ceedings in 
 Scotland. 
 
 100. In any judicial proceeding in Scotland, 
 any fact relating to a bill of exchange, bank 
 cheque, or promissory note, which is relevant to 
 any question of liability thereon, may be proved 
 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 tenor 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 Tharburn, p. 218, 
 and Bell's Principles, 9th ed. § 333 b. A somewhat wide 
 construction has been put upon the section in the direction 
 of allowing parole evidence to vary the contracts of the 
 parties to bills or notes (/) . 
 
 The sesennial prescription, which is the prescription 
 (applicable to bills and notes, runs from' the time when 
 payment is demandable (g) . 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 (h) . 
 
 (/) Dryborough v. Roy (1903), 5 P. 665; Vicmi § Co. v. Gunn # Co. 
 (1904), 6 P. 989; Manchester Banking Co. v. Ferguson § Co. (1905), 
 7 F. 865. . 
 
 (g) Bell's Princ. 9th ed. § 349; 12 Geo. 3, c. 72, ss. 37, 39. 
 
 {K) Bell's Princ. 9th ed. §§ 598, 599. 
 
Form or Protest. 333 
 
 SCHEDULES. 
 
 First Schedule. 
 
 Form of protest which may be used when the Section 94. 
 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 I now 
 in the presence of Gr. H. and J. K., do protest the 
 said bill of exchange. 
 
 (Signed) A. B. 
 
 ' ' [ Witnesses. 
 J. K. ) 
 
 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, as to this form. 
 
334 
 
 Bills of Exchange Act, 1882. 
 
 Second Schedule. 
 Enactments Repealed. 
 
 Session and Chapter. 
 
 Title of Act and extent of Repeal. 
 
 9 Will. 3, c. 17 
 
 3 & 4 Anne, c. 8 
 
 17 Geo. 3, o. 30. 
 
 39 & 40 Geo. 3, c. 42... 
 
 48 Geo. 3, c. 88. 
 
 1 & 2 Geo. 4, c. 78 
 
 & 8 Geo. 4, c. 15 
 
 9 Geo. 4, c. 24 
 
 2 & 3 Will. 4, c. 98 
 
 An Act for tie better payment of Inland 
 Bills of Exchange. 
 
 An Act for giving like remedy upon Pro- 
 missory Notes as is now used upon Bills 
 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 under a limited sum within 
 that part of Great Britain called England. 
 
 An Act for the better observance of Good 
 Friday in certain cases therein mentioned.. 
 
 An Act to restrain the Negotiation of Pro- 
 missory Notes 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 Notes 
 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, 
 
 Sections 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 of 
 the residence of the drawee or drawees of 
 the same. 
 
Repeals. 
 
 335 
 
 Session and Chapter. 
 
 Title of Act and extent of Repeal. 
 
 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. c. 81 
 41 & 42 Vict. c. 13 
 
 An Act for declaring the law as to the day 
 on ■which it is requisite to present for 
 payment to Acceptor, or Acceptors supra 
 protest for honour, or to the Eeferee or 
 Beferees^in.case of need, Bills of Exchange 
 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-iour. 
 
 The Mercantile Law Amendment Act, 1856, 
 in part ; that is to say, 
 
 Sections six 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 bills 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 
 injpart. 
 
 The Mercantile Law (Scotland) Amendment 
 Act, 1856, 
 
 in part ; that is to say, 
 
 Sections ten, eleven, twelve, 
 thirteen, fourteen-, .fifteen, and 
 sixteen. 
 
836 
 
 LIMITATIONS. 
 
 Limitation, 
 how com- 
 puted against 
 the several 
 parties. 
 
 Statute of Limitations. 
 
 Bute 1. Subject to the case provided for by sect. 48 (1) 
 of the Act and rule 5, no action on a bill can be maintained 
 against any party thereto after the expiration of six years 
 from' the time when a cause of action first accrued to the 
 then holder against such party (a) . 
 
 Illustbation. 
 
 0. is the holder of a dishonoured bill. Three years after the 
 dishonour he indorses the bill to D. D. must sue the acceptor 
 within the next three years, though be (presumably) has six years 
 within which, he may sue 0. 
 
 Note. — Sect. 48 (1), ante, saves the rights of a holder in due 
 course who takes a bill dishonoured by non-acceptance without 
 notice of that fact. 
 
 By the Limitation Act, 1623 (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 without speciality shall be com- 
 menced and sued within six years next after the cause of such 
 actions and not after. Under this enactment, 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 acknowledgment (6). This doc- 
 trine has been considerably narrowed by subsequent legislation. 
 See note to Kule 5, post, p. 341. 
 
 It is to be noted that the 3 & 4 Anne, c. 8, which put pro- 
 missory notes on the same footing as bills of exchange, has been 
 repealed (c). Sect. 4 of that Act applied the provisions of 21 
 Jac. 1, c. 16, to promissory notes, but the whole Act was repealed 
 as unnecessary when a legislative definition was given of promis- 
 sory notes (as is done by sect. 83), which clearly brought them 
 within the general words of the statute of James. 
 
 0) Cf. Jao. 1, o. 16; Whitehead v. Walker (1842), 9M. & W. 506; 
 Woodruf v. Moore (1850), 8 Barb. 171, New York. 
 
 (6) Re River Steamer Co. (1871), L. E. 6 Ch. App. 822, at p. 828. 
 
 (c) In Kuffhead's edition of statutes the Act appeared as 
 3 & 4 Anne, o. 9, and, the sections were numbered differently. 
 
Statute of Limitations. 337 
 
 The repeal of the statute of Anne may, however, have an 
 important bearing on notes made under the seal of a corporation 
 as provided for by sect. 91 (2), ante. Such notes might be held to 
 come under the 3 & 4 "Will. 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 independent of the statute (d). 
 
 In calculating the six year period of limitation it must be noted 
 that, when a debt is payable on a day certain, the debtor has the 
 whole of the day in which to pay, and that no cause of action 
 arises until that day has expired (e). 
 
 Rule 2. As regards the acceptor, time begins to run Acceptor or 
 from the maturity of the bill, unless — maker. 
 
 (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 (g) . 
 
 Illustrations. 
 
 1. Bill payable in futuro, e.g., three months after date or 
 sight. Time runs in favour of the acceptor from the maturity of 
 the bill, and not from the day the, acceptance is given (h). 
 
 2. Note payable three months after date. The la3t day of 
 grace is 22 September, 1906. If the note is unpaid, the cause of 
 action arises on the 23 September, and the six year period of 
 limitation expires on the 22 September, 1912. If that day is 
 a Sunday, and the writ is issued on Monday, it is too late (i). 
 
 3. B. in 1840 gives a blank acceptance to 0. In 1850 it is 
 filled up as a bill payable three months after date, and negotiated 
 to a bond fide holder. Time runs in favour of B. from the 
 maturity of the bill (k). 
 
 (d) Re Rutherford "(1880), 1'4 Ch. D. 687, at p. 691, O. A., where 
 twenty years had elapsed. 
 
 (e) Kennedy v. Thomas, (1894) 2 Q. B. 759, C. A.; Gelmini v. 
 Moriggia, (1913) 2 K. B. 549. 
 
 (/) Cf . sect. 52, ante. 
 
 (g) Cf. sect. 10 (2), ante. 
 
 (h) Holmes v. Kerrison .(1810), 2 Taunt. 323 ; cf . Fryer v. Rowe 
 (1852), 12 C. B. 437. See sect. 14, ante, . computation of time of. 
 payment. 
 
 (j) Gelmini v. Moriggia, (1913) 2 K. B. 549.. 
 
 (*) Montague v. Perkins (1853), 22 L. J. C. P. 187; cf. sect. 20. 
 
 c. 22 
 
338 Bills of Exchange. 
 
 4. 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 (£). 
 
 5. 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 issue (to). 
 
 6. Note payable three months after demand. Time runs in 
 favour of the maker from the time when the bill is payable (n). 
 
 mdorsw' 0r Rule 3. As regards the drawer or an indorser, time 
 
 (generality) begins to run from the date when notice of 
 dishonour is received (o) . 
 
 Illustrations. 
 
 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 
 bill is presented for payment and again dishonoured, no fresh 
 cause of action arises (p). 
 
 2. A bill drawn on B. 0. indorses it for A.'s accommodation. 
 The bill is dishonoured, and five years after the dishonour, 0., as 
 indorser, is obliged to pay the holder. Two years later (i.e., seven 
 years after the dishonour), 0. sues A. on the bill. The action is 
 barred. Miter if 0. sued A. on the implied contract of 
 indemnity (q) . 
 
 3. 0. is the indorser of a bill 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 (r). 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 (s); 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 
 
 (0 Norton v. Ellam (1837), 2 M. & W. 461; of. Jackson v. Ogg 
 (185-9), Johns, at p. 400; Wheeler v. Warner (1872), 47 New York R. 
 -519; cf . Bradford Old Bank v. Sutoliffe (1918), 24 Com. Oaa. at p. 37, 
 C. A.; (1918) 2 K. B. 832, distinguishing collateral from direct 
 promises. 
 
 (m) Savage v. Aldren (1817), 2 Stark. 232; ci..Riehards v. Richards 
 (1831), 2 B. & Ad. 447; Watkins v. Figg (1863), 11 W. R. 258. 
 
 (re) Thorp v. Coombe (1826), 8 D. & R. 347; of. Way v. Bassett 
 (1845), 5 Hare, 55; Brown v. Rutherford (1880), 14 Ch. f>. 687, O. A. 
 
 (o) Cf. Castrique v. Bernabo (1844), 6 Q. B. 498; and sect. 43, 
 ante. 
 ' (p) Whitehead v. Walker (1842), 9 M. & W. 506. 
 
 (?) Webster v. Kirk (1852), 17 Q. B. 944; cf. Woodruff v. Moore 
 (1850), 8 Barb. 171, New York. 
 
 (r) Cf. Re Brown's Estate, (1893) 2 Oh. at pp. 304, 305. 
 
 (s) Castrique v. Bernabo (1844), 6 Q. B. 498. 
 
Statute of Limitations. 339 
 
 balance of authority favours the view that the cause of action is 
 complete when notioe of dishonour is sent(£). In cases where 
 notice of dishonour 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 faot. On principle, it would seem that time should run in 
 favour of the drawer or indorser from the date when the holder 
 was entitled to treat the bill as dishonoured (see sects. 46 (2) 
 and 47), but the cases are conflicting (it). 
 
 Rule 4 . When an action is brought against a party to Collateral 
 a bill, to enforce an obligation collateral to the bill, though obligations, 
 arising out of the bill transaction, the nature of the par- 
 ticular transaction determines the period, from 1 which time 
 begins to run. 
 
 Illustrations. 
 
 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 indem- 
 nify. Time runs from the date B. was compelled to pay, and 
 not from the maturity of the bill (a;). 
 
 2. B. authorizes A., an agent abroad, to draw upon him for 
 the price of the 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 implied, contract to indemnify. Time runs from the date when 
 A. was compelled to pay (y). 
 
 3. A., intending to lend. 0. 501., draws a cheque in C.'s favour 
 for that sum. A. sues C. to recover the loan. Time runs from 
 the date when the cheque was cashed (z) . 
 
 See note ante, p. 227, distinguishing a right of action on a bill 
 from a right of action which a party to a bill may have arising 
 out of the bill transaction but independent of the instrument. 
 
 Foreign laws and conflict of laws. — In Prance the period of Foreign laws, 
 limitation is five years, and the time, it seems, begins to run 
 against acceptor, drawer, and indorsers from the day of pro- 
 test (o). By German Exchange -Law, Art. 77, the limitation as 
 regards the acceptor is three years, starting from the maturity of 
 the bill; but as regards the drawer or indorsers, it ( is three 
 
 (t) Daniel, § 1212; Shed v. Brett (1823), 18 Massachus. E. 401. 
 
 O) Cf . Re Bethell (1887), 34 Oh. D. 561, Stirling, J. ; but see 
 contra Re Boyse (1886), 33 Ch. D. 612. 
 
 (x) Reynolds v. Doyle (1840), 1 M. & Gr. 753 ; Angrove v. Tippett 
 (1865), 11 L. T. N. S. 708; but cf. Coppin v. Gray (1842), 11 L. J. 
 Ch. 105, as to a premature payment; see Davies v. Humphreys (1840), 
 6 M. & W. 153, contribution among co-makers. 
 
 (y) Huntley v. Sanderson (1833), 1 Cr. & M. 467. 
 
 (z) Garden v. Bruce (1868), L. E. 3 0. P. 300. 
 
 (a) French Code, Art. 189; Nouc/mer, § 1605. 
 
 22 (2) 
 
340 Bills of Exchange. 
 
 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 (6). Miter probably when 
 lapse of time operates as a discharge. 
 
 Statute, how Rule 5. Any circumstance which postpones or, defeats 
 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 hill. 
 
 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 sufficient to defeat the 
 operation of, the statute (c). 
 
 Illustbations. 
 
 1. The holder of an accepted bill dies intestate before its 
 maturity. The statute does not begin. to fun until an adminis- 
 trator is appointed (d) . 
 
 2. The holder of a bill at the time of its dishonour is a minor 
 or a lunatic. The statute does not begin to run against such 
 holder until the disability ceases (e). 
 
 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. Pour years after 
 its issue the holder sues the maker for interest, and recovers. 
 Three years later (i.e., seven years after issue of note) the holder 
 sues the maker on the note. The action is barred (g). Aliter if 
 the payment of interest had been voluntary. 
 
 5. Note payable three months after demand. Interest is paid 
 on it, as appears from indorsement on the back of the note. This 
 is evidence of a demand, and the statute begins to run from the 
 first payment of interest (h) . 
 
 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 (i) . 
 
 (6) Don v. Lippmann (1837), 5 CI. & F. 1, H. L. 
 (e) 9 Geo. 4, o. 14, a. 3. 
 
 (d) Murray v. Mast India Co. (1821), 5 B. & Aid. 204; see con- 
 versely Maxwell v. Tuhill (1878), 1 Ir. L. K. Ch. D. 250, death of , 
 acceptor intestate. ' 
 
 (e) Cf. 21 Jac. 1, c. 16; Soarpellini v. Aleheson (1845), 7 Q. B. 864. . 
 (/) Bpmfield v. Tuyper (1851), 7 Exch. 27. 
 
 (ff) Morgan v. Rowlands (1872), L. B. 7 Q. B. 493; see also 
 Harding v. Edgecumbe (1859), 28 L. J. Ex. 313, payment by agent. 
 {K) Brown v. Rutherford (1880), 14 Ch. D. 687, C. A. 
 (J) Bourdin v. Greenwood (1871), L. B. 13 E<j. 281. See as to 
 
Statute of Limitations. 341 
 
 7. A note is indorsed away by the payee for value. Subse- 
 quently the maker, not knowing of the indorsement, makes a 
 payment on account to the payee. This payment does not take 
 the case out of the statute (&). 
 
 8. A cheque is given in part payment of a debt, and is duly 
 honoured. The statute runs from the time the cheque was given, 
 and not from the time when it was paid (I). 
 
 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 writ- 
 ing, and signed by the debtor or his authorized agent, and must 
 be in such terms as to indicate a promise to pay. " To take 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 
 performed " (m) . A written promise to pay any balance which 
 may be found to be due when an account is taken is a sufficient 
 promise to take the case out of the statute (n) . 
 
 Lord Tenterden's Act, which required the acknowledgment to 
 be 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 payment, namely, that it must be such that a promise [to 
 pay] may be inferred in fact, not merely implied in law" (o). 
 
 By 9 Geo. 4, c. 14, s. 1, as amended by 19 & 20 Vict. c. 97, 
 s. 14, an acknowledgment or part payment by one co-debtor or 
 •co-contractor does not prevent the statute from running in favour 
 of the other or others (p), 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. 
 
 acknowledgments, Re Miver Steamer Co. (1871), L. E. 6 Oh. at 
 p. 828, Mellish, L.J.; Chasemore v. Turner (1875), L. E. 10 Q. B. 
 500, Ex. Ch.; Parson v. Nesbitt (1915), 60 S. J. 69. 
 
 (K) Stamford Banking Co. v. Smipi, (1892) 1 Q. B. 765, O. A. 
 
 (?) Marreoo v. Richardson, (1908) 2 K. B. 584, 0. A. 
 
 (m) Re River Steamer Co. (Mitchell's Claim) (1871), L. E. 6 Ch. 
 App. 822, at p. 828; cf. the test proposed by Bowem, L.J., in Green v. 
 Humphreys (1884), 26 Ch. D. 474, at p. 479, O. A. 
 
 (n) Langrish v. Watts (1903), 72 L. J. K. B. 435, C. A. 
 
 (o) Morgan v. Rowlands (1872), L. E. 7 Q. B. 493, at p. 498; cf. 
 Davies v. Edwards (1851), 7 Exch. 22, at p. 25, per Parke, B. 
 
 (p) Cf. Bradford Old Bank v. Sutclife (1918), 24 Com. Cas. at 
 p. 36, C. A. 
 
342 Bills of Exchange. 
 
 Where 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 still runs on (q). On the other hand, if the 
 holder of a bill at the time of dishonour be an infant, and he 
 subsequently indorse it while still an infant to an adult, it is con- 
 ceived that the statute runs from the indorsement in favour of 
 the parties liable on the bill. It seems that an acknowledgment 
 to the holder enures for the benefit of a subsequent holder (r); 
 but an acknowledgment to a previous indorser, who at the time 
 does not hold the bill, is ineffectual (*) . 
 
 (?) Rhodes v. Smethurst (1840), 6 M. & W. 351, Ex. Ch. 
 (>•) Byles, 12th ed. p. 359; cf. Cripps v. Davis (1843), 12 M. & W. 
 159. 
 (s) Stamford Banking Co. v. Smith, (1892) 1 Q. B. 765. 
 
Securities for Bills of Exchange. 343 
 
 SECURITIES FOR BILLS OF EXCHANGE. 
 
 Bights of Drawer. 
 
 Rule 1 . Apart from special contract, — Drawer'slien 
 
 (1) Where goods are sold, to be paid for by buyer's asu ?P ai d 
 acceptance of seller's draft, and the acceptor fails or dis- 
 honours the bill, the lien of the drawer as unpaid vendor 
 thereupon revives, if he has not parted with the posses- 
 sion of the goods or can stop them in transitu; and it is 
 immaterial that the drawer has negotiated the bill (t). 
 
 (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 (m) . 
 
 It is essential to distinguish between the sale of goods to the 
 acceptor, where the property in them vests absolutely in him, sub- 
 ject only to the vendor's lien until they reach his possession, and 
 the case of goods which are sent to the acceptor as cover for the 
 bill, where there is a kind of mixed property in the goods, both 
 drawer and acceptor having a defeasible interest therein (x). 
 The rights and duties of a commission merchant who buys for a 
 foreign principal are explained by Lord Blackburn in Ireland 
 v. Livingston (y) . 
 
 Rule 2. Where the drawer of a bill remits goods or 
 securities to the drawee as cover for the bill, and in 
 consequence of the drawee's failure is obliged to take up 
 the bill, he is entitled to the return of any such goods or 
 securities as the drawee may hold unrealized at the time 
 of his failure (z) . 
 
 (<) Gunn v. Bolckow, Vaughan § Co. (1875), L. R. 10 Oh. 491; 
 cf. Ex parte Chalmers (1'873), L. R. 8 Ch. at p. 292; Ex -parte 
 Zambton (1875), L. R. 10 Ch. at p. 415; Sale of Goods Act, 1893 
 (56 & 57 Vict. c. 71), s. 38. 
 
 (u) Ex parte Banner (1876), 2 Ch. D. at p. 287, O. A.; cf. Ex 
 parte Gomez (1875), L. R. 10 Ch. at p, 645. 
 
 (x) Ibid. See, too, Ex parte Zambton (1875), L. R. 10 Ch. at 
 p. 416. 
 
 (y) Ireland v. Livingston (1872), L. R. 5 H. L. at p. 408. 
 
 (a) Cf. Re Broad, Ex parte Neck (1884), 13 Q. B. Dj. 740, O. A.; 
 Ex parte Dever (No. 2) (1885), 14 Q. B. D. 611, at p. 624, per 
 Cotton, L.J., C. Ax, and see Rule 4. 
 
344 Bills of Exchange. 
 
 Rights of Drawee or Acceptor. 
 
 Eight or lien Rule 3 . Where the drawer of a bill of exchange remits 
 
 o aocep i. gQQ^g 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 (a) . If the drawee do not accept 
 
 he has no right to or lien upon the good's and securities (b) . 
 
 Illustrations. 
 
 1. A. oonsigns goods to B., and draws on him for the price. 
 
 A. sends the bill of lading and bill of exchange to his own 
 agent, who forwards them to B.~, requesting him to accept the bill. 
 If B. do not accept the bill of exchange he cannot retain the bill 
 of lading (c). 
 
 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 the 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 2007. Before the bill matures 
 A., the drawer, fails. B. has a lien on the goods to the extent 
 of 200Z. (d). 
 
 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 delivery of bill of lading. B. fails 
 before the bill matures. This operates as a pledge of B.'s interest 
 in the goods to the holder, who becomes, as regards B., a secured 
 creditor (e). 
 
 4. An English accepting house undertakes for a commission to 
 finance shipments from Chile to a firm in Germany. A cargo is 
 sold to the German firm, and the seller draws on the English 
 house for the price, and sends the bill of lading to the English 
 house, which accepts and pays the bill of exchange. While the 
 cargo is at sea war breaks out with Germany, and the cargo is 
 
 (a) Ex parte Brett (1871), L. B. 6 Ch. at p. 841 ; Ex parte Oriental 
 Bank Corporation (1874), 30 L. T. 803, L.JJ.; Re Pavy's Patent 
 Fabric Co. (1876), 1 Oh. D. 631; Zutscher v. Comptoir d'Escompte 
 (1876), 1 Q. B. D. 709: cf. Ex parte Banner (1876), 2 Ch. D. at 
 p. 287, C. A.; see, too, Steele v. Stuart (1866), L. B. 2 Bq. 84. 
 
 (b) Shepherd y. Harrison (1871), L. B.'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, O. A. ; see, too, Torrance v. Bank of British 
 America (1873), L. B. 5 P. C. 246; and Sale of Goods. Act, 1893 (56 
 & 57 Vict. c. 71), s. 19 (3); Barton, Thompson § Co. v. Vigers 
 Brothers (1906), 19 Com. Gas. 175; distinguished Jordeson $ Co. v. 
 London Hardwood: Co. (1906), 19 Coin. Cas. at p. 172 (action by 
 agent when principal ought to have sued) . 
 
 (e) Shepherd v. Harrison (1871), L. B. 5 H. L. 116. 
 (a") Be Pavy's Patent Fabric Co. (1876), 1 Oh. D. 631; see, passim, 
 Ex parte Dickin (1878), 8 Ch." D. 377. 
 
 (e) Ex parte Brett (1871), L, B. 6 Ch. at p. 841. 
 
Securities eor Bills of Exchange. 345 
 
 captured by an English, cruiser. It is condemned as prize, 
 because it is German property. The English house has only the 
 rights of a pledgee, and those rights are not recognized by the 
 Prize Oourt (/) . 
 
 5. Goods consigned for sale from A. in America' to B. in 
 England. The consignor draws.;.on B. for the price, and discounts 
 the bill with the bill of lading attached. The property in 1 ; the 
 goods prima facie passes to B. when he receives the bill of 
 lading and accepts the bill of exchange (g). 
 
 Lord Cairns points out in Banner v. Johnston (ft), 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 Oode, Art. 26. 
 
 The ordinary rights of the parties may of course be varied 
 by the terms of the credit under which the bill is drawn, and the 
 real relations of the parties. Por example, when a documentary 
 bill is accepted the Acceptor may be the buyer of the goods, or the 
 drawer's agent for sale, or he may be accepting the bill to finance 
 a third party who is the real buyer (i). 
 
 Rule 4. If the acceptor fails during the currency of Effect of 
 the bill or dishonours it at maturity, his lien upon or a°. oe P tor ' s 
 right to the goods or securities is thereby determined, and 
 he holds them at the disposition of the drawer (k). 
 
 Illusteations. 
 
 1. A. draws on B., and remits to B. bills of other parties which 
 he holds to provide B. with funds. B. accepts, fails before his 
 acceptances mature, and - compounds, paying the bill-holders 5s. 
 in the pound. If B. realizes the bills sent Jiim 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 (I). 
 
 2. An agent buys goods for his principal, remits them to him, 
 and draws on him for the prioe. The principal accepts the bill, 
 but fails before it matures. The property in the goods does not 
 
 (/) The Odessa, (1916) A. C. 145, P. O. The only remedy of the 
 English house is an appeal to the bounty of the Crown. 
 
 O) The Prinz Adelbert, (1917) A. C. 586, P. O. 
 
 (h) Banner v. Johnston (1871), L. B. 5 H. L. at p. 174. 
 
 (i) As to measure of damages when the third party does not recoup 
 the acceptor, see Re Ludvig Tilman (1918), 34 T. L. B. 322. 
 
 (k) Tooke v. Uollingworth (1793), 5 T. B. 215 ; approved Ex parte 
 Banner (1876), 2 Ch. P.at p. 289, O. A.; Ex parte Kelly # Co. (1879), 
 11 Ch. D. 306, C A.; Re Gothenburg- Commercial Co. (1881), 29 
 W. E. 358, C. A..; of. Ex parte Sm-art (1872), L. B. 8 Ch. Ap. at 
 p. 224. 
 
 (1) Ex parte Gomez (1875), L. B. 10 Ch. 639. 
 
346 Bills op Exchange. 
 
 re-vest in the drawer, for the goods are the principal's abso- 
 lutely (to). 
 
 3. A bill for 400Z. is accepted to accommodate the drawer. The 
 drawer forwards to the acceptor the bill of a third party for 400?. 
 to provide for the acceptance. The acceptor discounts the re- 
 mitted bill, being, entitled to do so by the course of dealing, 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 him a bill running: "Pay to the order of 
 G. 1,0002., and charge the same to account of cheese, per 
 Britannic, as advised." The same day A. writes to the factor, 
 enclosing bills of lading for the cheese, and saying: "Against 
 these we value on you in favour of C." > A., the drawer, fails, 
 and the factor refuses to accept. 0.', the bill-holder, has no claim 
 on the goods (o). They belong to the drawer's trustee. 
 
 The case of Brown v. Rough (p) seems finally to dispose of the 
 often discredited case of Frith v. Forbes (q),. by treating it as 
 an erroneous finding on a question of fact. As Mellish, L.J., 
 says in Robey v. Oilier (r) : " A mercantile man who is intended 
 to have a lien on a cargo expects to have a bill of lading annexed 
 (to the bill of exchange); if there is no bill of lading annexed, 
 he only expects to get the security of the bill itself. In Frith 
 v. Forbes, the Court considered that, taking all the letters 
 together, there was an equitable assignment (in favour of the 
 bill-holder)." 
 
 Where remittances are made to cover bills, and the drawer by 
 a collateral agreement has assigned his rights to a particular 
 holder, the acceptor holds the remittances for the benefit of that 
 holder as equitable assignee («) . 
 
 Rights of Holder. 
 
 Bill not an Rule 5 . Where the drawee or acceptor of a bill is 
 
 oflundf 11 * i ndeb ted to, or has in his hands funds of the drawer 
 
 sufficient to meet it, the bill does not operate as, an 
 
 assignment of the debt or funds in favour of the holder (t). 
 
 (m) Exparte Banner (1876), 2 Ch. D. 278, 6. A.; seeatp. 389; see 
 Banco de Lima v. Anglo-Peruvian Bank (1878),- 8 Ch. D. 160, 
 
 (») Be Broad, Ex parte Neeh (1884), 13 Q. B. D. 740, C. A.; ef. 
 Ex parte Dever, He Suse (1884), 13 Q. B. D. 766, C. A.; alitef, it 
 seems, if the security were in specie at the time of failure. 
 
 (o) Brown, Shipley & Co. v. Rough (1885), 29 Oh. D. 848, C. A.; 
 cf. Phelps v. Comber (1885), 29 Ch. D. 813, C. A. 
 
 (p) Brown, Shipley # Co. v. Kough (1885), 29 Oh. D. 848, O. A. 
 
 (q) Frith v. Forbes (1862), 4 De G. F. & J. 409. 
 
 (r) Sobey v. Oilier (1872), L. B. 7 Oh. at p. 699. 
 
 (s) Ex parte Garrich (1858), 2 De G. & J. 208. 
 
 if) See aect. 53, ante; and Shand v. Du Buisson (1874,), L. K. 18 
 
Securities for Bills of Exchange. 347 
 
 Such an assignment can only be effected by agreement 
 extraneous and collateral to the bill (w) . 
 
 Illusteations. 
 
 1. A., having a fund in B.'s hands, draws on B. a bill for the 
 exact amount of the fund. This does not operate as an assign- 
 ment of the fund to the payee (as). 
 
 2. The holder of a bill purchases it on the faith of a verbal 
 representation made by the drawer that funds sufficient to meet 
 it have been remitted to the drawee, that it is drawn against 
 those funds, and that it certainly will be paid. The drawer fails, 
 and the drawee refuses to accept the bill, though he has funds 
 sufficient to meet it. The bill-holder is not entitled to those 
 funds, and the drawee is justified in handing them ovei* to the 
 drawer's trustees (y) . 
 
 This rule does not apply to Scotland. See sect. 53, ante. 
 
 Rule 6. Subject to Rule 7 (double insolvency), where Bill drawn 
 a bill of exchange is on the face of it expressed to be against 
 drawn against specific goods or securities, the holder does 8pe01 ogo ° s " 
 not obtain thereby any charge upon the goods or securi- 
 ties if the bill be dishonoured (z) . 
 
 Such charge can only be created by agreement collateral 
 to the bill, and in favour of the person with whom the 
 agreement is made (a), or (perhaps) by the terms of a 
 conditional acceptance (&). 
 
 Illustbatiows. 
 
 1. Under a credit, No. 20, a consignor of cotton is entitled to 
 draw on the 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 
 
 Eq. 283, bill; Hopkinson v. Forster (1874), L. R. 19 Eq. 74, cheque; 
 Schroeder v. Central Bank (1876), 34 L. T - . N. S. 735, cheque. 
 
 («) Thomsons. Simpson (1870), L. R. 5 Ch. 659; Citizens' Bank of 
 Louisiana v. New Orleans Bank (1873), L. R. 6 H. L. 352; see at I 
 pp. 360 and 366. 
 
 (x) Shand v. Du Bidsson (1874), L. R. 18 Eq. 283. 
 
 Qy) Citizens' Bank of Louisiana v. New Orleans Bunk (1873), L. R. 
 6 H. L. 352. 
 
 (z) Inman v. Clare (1858), Johns. R. at p. 776; Eobey v. Oilier 
 (1872), L. R. 7 Ch. 695, at p. 698. 
 
 («) Ibid.; see Ex parte Imbert (1857), 1 De G. & J. 152; Ex parte 
 Carrick (1858), 2 De G. & J. 208; Banken v. 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. 
 
 (6) Ex parte Brett (1871), L. R. 8 Ch. 841, C. A. 
 
348 
 
 Bills of Exchange. 
 
 Double 
 insolvency 
 of parties 
 liable. 
 
 before the bill matures, and dishonours it. The holder has no> 
 charge on the cotton (c). 
 
 2. A. consigns by ship Acacia a cargo to B., and draws a bill 
 on B. running, "Pay to my order 1001., 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 
 bill(d). . , , 
 
 3. A. in India sells and ships cotton to B. in England, and 
 draws for the price a bill running, "Pay 0. or order 1,000?., and 
 place the. same to account cotton shipments as advised." B. 
 promises the drawer to protect the bill, accepts it, and gets the 
 bills 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 (e). 
 
 4. Bills are drawn under a credit against specific consignments. 
 By the terms of the credit, which is shown to the holder, the bills 
 are to be accompanied by bills of lading which are to be surren- 
 dered to the drawee on acceptance. If the acceptor fails, the bill- 
 holder has no claim on the consignments or their proceeds (/). 
 
 , See further, Illustration 4 to Eule 4, ante, and the note at the 
 end of that rule. The holder of a documentary bill who in good 
 faith presents it for acceptance or payment is not responsible for 
 the authenticity of the documents attached (g). 
 
 Rule 7. Where the estates of two insolvent (h) parties 
 both liable to the holders of bills of exchange (i) are 
 administered under the control of a court of justice (k) T 
 and one of those parties holds gaqds or securities of the 
 other's (I) as cover for the bills (w), the holders are en- 
 titled to have the prooeeds of those goods and securities- 
 applied in payment of the bill (n), provided that the goods 
 
 (c) Banner v. Johnston (1871), L. R< 5 H. L. 157. 
 
 {d) Sobey v. Oilier (1872), L. B. 7 Ch. 695. 
 
 (e) Ex parte Arbuthnot (1876), 3 Ch. D. 477, C. A. 
 
 if) Ex parte Dever, Re. Suse (1884), 13 Q. B. D. 766, C. A. The 
 appropriation is for benefits drawee, not holder. 
 
 to) Guarantee Trust Co. of New York v. Bannay & Co., (1918) 2. 
 K. B. 623, O A. 
 
 (h) Biokie's Case (1867), L. R. 4 Eq. 226. 
 
 (i) Vaughan v. Balliday (1874), L. R. 9 Ch. App. 561. 
 
 (k) Powles v. Eargreaves (1853), 23 L. J. Ch. 1. 
 
 (I) Ex parte Lambton (1875), L. R. 10 Ch. App. 405, see at pp. 416 r 
 417; Ex parte Banner (1876), 2 Ch. D. at p. 287, O. A.; and see 
 Banner v. Johnston (1871), L. R. 5 H. L. at p. 174. 
 
 (m) Levi $ Co.'s Case (1869), L. R. 17 Eq. 449; Ex parte Alliance 
 Bank (1869), L. R. 4 Ch. App. 423. 
 
 (») Ex parte Waring (1815), 19 Vea. 345; Ex parte Parr (1818), 
 Buck. 191; City Bank v. Luokie (1870), L. R. 5 Oh. App. 773; Bank 
 of Ireland v. Perry (1871), L. R. 7 Ex. 14; Ex parte Dewhurst (1873), 
 L. R. 8 Ch. App. 695. 
 
Securities for Bills of Exchange. 349 
 
 or securities remained unrealized at the time -of the failure Double innol 
 of the party holding them (o). N ™^> °*™ le 
 
 If the proceeds of the goods and securities do not equal waring. 
 tho amount of the bill, the holders are entitled to prove 
 as creditors for the balance (p) . 
 
 Illusteations. 
 
 1. The drawer and acceptor of a bill both become bankrupt. 
 The acceptor holds short bills belonging to the drawer as cover 
 for his acceptance. The holder is entitled to the proceeds of 
 these bills when realized (q). 
 
 2. The drawer of a bill becomes bankrupt. The acceptor dies 
 insolvent. By agreement with the acceptor the drawer holds 
 certain goods as security for the amount of the bill. The holder 
 is entitled to the proceeds of these goods (r). 
 
 3. The drawer and acceptor of a bill become 1 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 
 guarantee (s). 
 
 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 (f). 
 
 5. The drawer and acceptor of a bill, who are distinct firms in 
 India and England respectively, but engaged in a joint adventure, 
 become bankrupt. The bill is drawn specifically against a con- 
 signment of goods from the drawer to the acceptor. The holder 
 is entitled to the proceeds of the consignment, subject to claims 
 of the aggregate creditors of the two firms against the aggregate 
 assets (w). 
 
 6. The drawer and acceptor of a bill become bankrupt, the 
 drawer having sold goods to the acceptor and drawn on him for 
 the price according to agreement. The holder is not entitled to 
 the proceeds of the goods (x). 
 
 7. The drawer and. acceptor of a series of bills become bank- 
 rupt. According to the terms of the credit under which the bills 
 
 0) Ex parte Dever, He Suse (No. 2)- (1885), 14 ft. B. D. 611, 
 C. A.; aliter, if realised rightfully or wrongfully; per Brett, M.'R., at 
 p. 622. . 
 
 (p) Powles v. Hargreaves (1853), 3 De G. M. & G. 430; see at 
 p. 452, and form of order at p. 445; also form of decree in City Bank 
 v. LucUie (1870), L. R. 5 Ch. App. at p. 778; Ex parte Joint Stock * 
 Discount Co. (1875),. L.. R. 10 Oh. App. 198, reduction of proof. 
 Qumre, if Loder's Case (1868), L. R. 6 Eq. 491, be right? ' ' 
 
 (?) Ex parte Waring (1815), 19 Ves. 345. ' ' 
 
 (r) Powlet v. Hargreaves (1853), 3 De G. M. &G. 430. 
 
 (s) Ex parte Stephens (1868), L. R. 3 Ch. App. 753. 
 
 (0 Levi # Co.'s Case (1869), L. R. 7 Eq. 449. 
 
 (u) Ex parte Dewhurst'(181Z), L. R. 8 Ch. App. 965; cf. Ex parte 
 Manchester Bank |1879), 12 Ch. D. at 779. 
 
 (a;) Ex parte Xambton (1875), L. R. 10 Ch. App. 405. • > 
 
350 Bills of Exchange. 
 
 Double insol- Eire drawn, securities are remitted as cover for specific Mils. The 
 
 yenoy, or rule bill-holders are entitled to the benefit of the securities which 
 
 in Ex parte remain unrealized in 'the hands of the acceptor at the time of his 
 
 Waring. failure. The securities must be appropriated for the benefit of 
 
 the holder of the bill they were remitted to cover, and not for the 
 
 benefit of the holders of other bills drawn under the same 
 
 credit (y). 
 
 The rule above stated is generally known as the rule or doctrine 
 of Ex parte Waring. It has been much misunderstood. The 
 principle on which it is founded is the necessity of working out 
 the equities between the two insolvent estates, each of which has 
 a claim on the goods or securities forming the cover for the bill, 
 which can only be satisfied by the application of the proceeds to 
 meet the bill. It is not founded on, .nor does it imply any pro- 
 perty or interest in, the goods or securities on the part of the 
 bill-holder. See per Lord Oranworth, and Turner, L.J. (z), per 
 Lord Hatherley (a), per Lord Cairns (6), per James, L.J. (c). 
 
 The rule in Ex parte Waring is a rule positivi juris, peculiar 
 to English law. It embodies no universal principle of equity, and 
 does not extend to Scotland (d). See the rule criticised by Lord 
 Selbome. 
 
 Explanation 1 . — Each of the insolvent parties must be 
 liable to the bill-holder in respect of the bill transaction, 
 but it is not necessary that both of them should be liable 
 as parties-to the bill (e). 
 
 Illustrations. 
 
 1. A bill is drawn specifically against a consignment of goods. 
 Drawer and drawee both become bankrupt, and the drawee refuses 
 to accept. The holder is not entitled to the proceeds of the 
 goods (/). 
 
 2. A. in Scotland employs S. as his correspondent at Havannah, 
 and B. as his correspondent in London. A. sends goods to S., 
 and by arrangement between all parties, draws on B. for the 
 price. B. accepts. S. sends remittances in bills to B. to cover 
 his acceptance. S. and B. become bankrupt. A. is entitled to 
 the proceeds of the remittances if he takes up the bill(g>). 
 
 Explanation 2 . — It is not necessary that the two insol- 
 vent estates should' be administered in bankruptcy. It is 
 
 O) Ex parte Dever, Re Suae (No. 2) (1885), 14 Q. B. D. 611, C. A. 
 (a) Powles v. Eargreaves (1853), 8 De G. M. & G. at 447, 458. 
 (a) City Bank v. Luckie (1870), L. E. 5 Oh. App. at 776. 
 (V) Banner v. Johnston (1871), L. E. 5 H. L. at 174. 
 
 (c) Vaughan v. Halliday (1874), L. E. 9 Ch. App. at 567. 
 
 (d) Royal Bank of Scotland v. Commercial Bank (1882), 7 App. 
 Cas. 366, H. L. 
 
 (e) Vaughan v. Halliday (1874), L. E. 9 Ch. App. at 568. 
 (/) Ibid. t 
 
 (g) Ex parte Smart (1872), L. R. 8 Ch. App. 220. 
 
Securities foe Bills of Exchange. 351 
 
 sufficient that they are both administered for the benefit of 
 creditors under the control of a court of justice (h). 
 
 The term generally used is that both insolvent estates must be 
 under a "forced administration " (»). 
 
 It is possible that where a debtor enters into a composition with 
 his creditors under the Bankruptcy Act, 1883, his estate is suffi- 
 ciently administered under the control of a court of justice to 
 allow the doctrine of Ex parte Waring to apply (k). By s. 10 of 
 the Judicature Act, 1875, the bankruptcy rules as to proof, &c. 
 are applied to the winding up of insolvent companies and to the 
 administration of the estates of persons who have died insolvent. 
 
 Rights of Surety on Bill. 
 
 Rule 8. (1) Where a bill, which was accepted for value, Eight of 
 is dishonoured, and the drawer or an indorser is compelled m ^? t com " 
 to pay- it, he is entitled to the benefit of any securities t securities, 
 deposited by the acceptor with the holder to secure the 
 payment of the bill which the holder had in his possession 
 at the time of the dishonour of the bill (I). 
 
 When a bill is accepted for value the drawer and indorsers are 
 quasi sureties for the acceptor, see ante, p. 209. See the limits 
 of the relationship discussed by Lord Blackburn and Lord 
 Watson (m). And see the whole subject discussed under the 
 head of Principal and Surety, ante, p. 251. 
 
 (2) Where an accommodation party is compelled to 
 pay a bill, he is entitled to the benefit of any securities 
 deposited by the person accommodated with the holder as 
 security for the payment of the bill (n). 
 
 (h) Powles v. Eargreaves (1853), 3 De G. M. & G. 430, at 451, 
 458; Richie's Case (1867), L. E. 4 Eq. 226; Ex parte General SouiJi 
 American Co. (1875), L. E. 10 Oh. App. 635; Ex parte Gomez (1875), 
 L. E. 10 Ch. App. at 647, 648. 
 
 (i) Ex parte Dever (No. 2) (1885), 14 Q. B. D. 611, at pp. 621, 625, 
 C. A. 
 
 (k) Cf. Ex parte Gomez (1875), L. E. 10 Ch. App. at 648; and see 
 the status of a composition discussed in Ex parte Rumboll (1871), 6 
 Ch. App. 842, and Gray v. Megrath (1874), L. E. 9 O. P. at 230. 
 
 (Z) Duncan, Fox $ Co. v. N. # S. Wales Bank (1880), 6 App. Cas. 
 1, H. L., overruling C. A.; see First National Sank v. Word (1877), 
 71 New York E. 405 ; Aga Ahmed v. Judith Crisp (1891), 19 Ind. App. 
 24, P. C. (right of indorser paying note to title deeds deposited with 
 holder) . 
 
 (m) Duncan, Fox § Co. v. N. § 8. Wales Bank, supra, at pp. 19, 
 22. 
 
 (») Bechervaise v. Lewis (1872), L. E. 7 C. P. at p. 377, per 
 Willes, J.; Gray v. Seckham (1872), L. E. 7 Ch. 680; cf. Pearl v. 
 Deacon (1857), 1 De G. & J. 461. 
 
352 Bills of Exchange. 
 
 PAYMENT BY BILL, NOTE, OR CHEQUE. 
 
 General rule The general' rule of English law is that when a debt 
 asto payment. , ..'.., im , , . , i 
 
 becomes due, it is the duty oi the debtor, in the absence 
 
 of any different agreement, to seek out his creditor, if in 
 
 England, and tender him the exact amount of his debt in 
 
 cash or other legal tender (a) . 
 
 On,- the one hand the debtor is under no obligation to 
 honour a bill drawn on him by a creditor, unless he has 
 i agreed to do so, ante, pp. 207, 294; and on the other hand 
 the creditor is under no obligation to receive a bill, note, or 
 cheque in discharge of his debt. Consequently an autho- 
 rity to an agent to receive payment of a debt due to his 
 principal is not an authority to receive payment by bill or 
 cheque (6). But tender of a cheque or other negotiable 
 instrument may be a good tender if the creditor objects 
 only to the amount, and not to the quality of the tender (c) . 
 
 If an acceptance is to be taken in payment for good's 
 or discharge of a debt it is the duty of the creditor to draw 
 a bill on a proper stamp and present it for accepitance (d) . 
 
 Where, however, a creditor has taken a bill, note, or 
 
 (a) Of. Fessard v. Mugnier (1865), 34 L. J. O. P. 126; Bradford 
 Old Bank v. Suicliffe (1918)-, 24 Com. Cas. at pp. 30, 37, C. A. 
 As to requiring change, see Robinson v. Cook (1815), 6 Taunt. 336, 
 and of. Dean v. James (1S33), '41 B. & Ad: 546. As to legal tender 
 in coin, see the Coinage Act, 1870 ( (33 & 34 Vict. c. .10). As to 
 payment post diem, see Beaumont v. Greathead (1846), 2 C. B, 494. 
 As to Treasury notes, see post, p. 379. 
 
 (») Williams v. Evans (1866), L. K. 1' Q. B. 352 (auctioneer); 
 Blumberg v. Life Interests Corporation, (1896) 1 Oh. 171; affirmed, 
 (1897) 1 Oh. 27, C. A- (solicitor). 
 
 (c) Pblglass v. Oliver (1831), 2. Or. & J. 15; Caine v. Coulton 
 (1863)', i*H. & C: 764 (bank post bill). See, too, as to a cheque, Pape 
 v.. Westaoott, (1894) 1 Q. B. 272, C. A.; Meyer v.. See Sat, Banking 
 Co., (1913) A. C. 847, P. C. (cheque given by bank in exchange for 
 money paid in). r 
 
 (r/) Cf. 'Bullcn and Leake, Precedents of Pleading, ed. 7, p. 670. 
 
PAYMENT BY BlLL, NOTE, OR CHEQUE. 353 
 
 cheque from his debtor various questions may arise as to 
 the effect of the transaction. 
 
 Where a bill or note is given bj a debtor to his creditor Collateral 
 it may be given either by way of payment or as collateral Se ° un r ' 
 security, the presumption being in favour of payment (e) . 
 If it is given by way of collateral security it does not 
 suspend the creditor's right to sue for his debt, but the 
 creditor must use due diligence to collect it and give notice 
 of dishonour, if necessary, otherwise it may be treated as 
 so much money in his hands (/) . 
 
 Where a bill or note is given by way of payment, the Conditional 
 payment may be absolute or conditional, the strong pre- p ymen 
 sumption being in favour of conditional payment (g) . It 
 is immaterial whether the instrument is payable on 
 demand or at a future time. "The title of a creditor," 
 says Lush, J., "to a bill given on account of a pre- 
 existing debt, and payable at a future day, does not rest 
 upon the implied agreement to suspend his remedies. The 
 true reason is that a negotiable security given for such a 
 purpose is a conditional payment of the debt, the condition 
 being that the debt revives if the security is not realized. 
 This is precisely the effect which both parties intended 
 the security to have, and the doctrine is as applicable to 
 one species of negotiable security as another; to a cheque 
 payable on demand, as to a running bill or a promissory 
 note payable to order or bearer, whether it be the note 
 of a country bank which circulates as money, or the note 
 of the debtor, or of any other person " (h) . 
 
 In some American States, for instance, Massachusetts 
 
 (e) Re Boys (1870), L. R. 10 Eq. 467; of. Attenborough v. Clarke 
 (1858), 27 L. J. Ex. 138. 
 
 (/) Peacock v. Purssell (1863), 32 L. J. C. P. 266.. 
 
 (pr) Cf. Maillard v. Argyle (1843), 6 M. & Gr. 40; Leake v. Young 
 (1856), 25 L. J. Q. B. 266; Bottomley v. Nuttall (1858), 28 L. J. 
 C. P. 110. 
 
 (A) Currie v. Misa (1875), L. R. 10 Eq. 153, at p. 163, Ex. Ch.; 
 see Crowe v. Clay (1854), 9 Exoh. 604, at p. 608, Ex. Ch.; Marreco 
 v. Richardson, (1908) 2 K.. B. at p. 592, C. A.; cf. Sale of Goods 
 Act, 1893 (56 & 57 Vict. c. 71), s. 38, as to revival of vendor's \\vn. 
 
 C. 23 
 
3 54 Bills of Exchange. 
 
 and Vermont, the common law presumption is reversed, 
 and a bill or note is prmtd facie deemed to have been taken 
 as absolute and not as conditional payment; but in most 
 States the English rule prevails (i) . 
 
 The effect of a bill or note as conditional payment may 
 be illustrated by the contract of sale. If a bill be taken 
 for the price of goods sold, the seller's lien is gone during 
 the currency of the bill, but revives on its actual or 
 practical dishonour. Thus, in Gunn v. Bolckoitf, Vaughan 
 & Co., where iron rails were sold to be paid for by buyer's 
 acceptances of seller's drafts against wharfinger's certifi- 
 cates, it was held that the giving of the acceptances was 
 not an absolute payment, but conditional on the accept- 
 ances being met, and that upon the insolvency of the 
 acceptors the seller's lien on the goods revived, and the 
 fact that the sellers had negotiated the bills made no 
 difference. "No doubt," says Mellish, L.J., "if the 
 buyer does not become insolvent then credit is given by 
 taking the bill, and 1 during the time that the bill is 
 current there is no vendor's lien, and the vendor is 
 bound to deliver. But if the bill is dishonoured before 
 delivery has been made, then the Vendor's lien revives; 
 or if the purchaser becomes openly insolvent before the 
 delivery actually takes place, then the law does not compel 
 the vendor to, deliver to an insolvent purchaser " (Jc). 
 Though the bills had been discounted', the sellei? was 
 liable on them 1 , with recourse over only against the insol- 
 vent buyer, otherwise the fact that the 'bills were in 
 the hands of third parties would have been material (Z). 
 Where the seller of goods took the buyer's acceptance 
 and then indorsed the bill to a third person and the bill 
 
 (») Story on Sale, § 219. 
 
 (A) Gunn v. Bolohow, Vaughcm § Co. (1875), L. R. 10 Oh. App. 
 491, at p. 501; and see Sale of Goods Act, 1893, s. 38. 
 
 (t) National Savings Bank v. Tranah (1867), L. E. 2 C. P. 556. 
 A vendor's lien on real estate does not seem to be waived by taking a 
 bill or note. Ex parte Louring (1814), 2 Rose, 79. 
 
Payment by Bill, Note, or Cheque. 355 
 
 was dishonoured, it was held that he could not sue the 
 buyer for the price while the hill was outstanding 1 in the 
 hands of a third person, even though he got it hack before 
 the action oamie on for hearing (oti) . 
 
 Again, where a cheque was given in part payment iof 
 a debt, it was held that, as regards the balance of the debt, 
 the Statute of Limitations began to run from the time 
 when the cheque was given, andl not from the time when it 
 was paid (n) . And where a bill broker pledged 1 negotiable 
 securities with a bank, and the bank released the securities 
 to the bill broker on receiving his cheque, it was held that 
 the securities were not impressed 1 with any trust in favour 
 of the bank if the cheque was dishonoured (o). The fact 
 that a solicitor has taken a bili in respect of his bill of costs 
 does not prevent the bill of costs from 1 being liable to 
 taxation (p) . 
 
 When the bill or note is dishonoured it seems that the 
 debt which was conditionally paid m!ay be treated as sub- 
 sisting throughout. Thus, where a debtor had given his 
 creditor a cheque, but on the debt being garnisheed, 
 stopped the cheque, it was held that there was a goad 
 subsisting debt which could be garnisheed (q) . Con- 
 versely, when the bill or note is duly honoured, the 
 payment dates from 1 the date of the receipt of the bill 
 or note (r) . 
 
 There is, however, a qualification of the rule that a creditor 
 bill or note operates as conditional payment in the case J)? 1 ?* 1 * 
 where the creditor already possesses a higher remedy, security. 
 
 (/») Davis v. Eeilly, (1898) 1 Q. B. 1; followed Re A Debtor, 
 (1908) 1 K. B. 344, 350, C. A. (bankruptcy notice) . 
 
 (n) Marreco v. Richardson, (1908) 2 K. B. 592, C. A. 
 . (o) Lloyds Bank v. Swiss Bankverein (1912), 18 Com. Gas. 79, 
 C. A. 
 
 (/>) Re Romer,'(1893) 2 Q. B. 286, at p. 300, C. A. 
 
 (?) Cohen f. Hale (1878), 3 Q. B. D. 371; Loughman v. Barry 
 (1858), 6 !r. R. C. L. 457; cf. Re London and Birmingham Bank 
 (1865), 34 L. J. Ch. 418, as to the effect of a renewal bill on a banker's 
 lien, sed qu. ? 
 
 (r) Hadley Felix v. Hadley, (1898) 2 Oh. 680; Marreco ». 
 Richardson, (1908) 2 K. B. at p. 592, C. A. 
 
 23 (2) 
 
356 Bills of Exchange. 
 
 In Bdshaw v. Bmh (s), where it was held 1 that the accept- 
 ance of a third person operated as a conditional payment, 
 Maule, J., says: " The cases in which the giving of the 
 bill has been held' not to suspend the remedy on a demand 
 by specialty, or for rent, may be accounted' for on the 
 ground that the legal implication of an assent that the 
 bill shall operate as a conditional payment does not arise, 
 where, if it did, the plaintiff would be deprived of a better 
 remedy than an action on a bill, .as in Davis v. Gyde (t), in 
 which the debt being for rent, the plaintiff would part 
 with a remedy by distress; and, as in Worthinffton v. 
 Wigley (tt), where the demand being on a bond the plain- 
 tiff might in certain eVente have recourse to other funds 
 than he could in an action on a simple contract." Again, 
 as Warrington, J., says, "the mere giving of a cheque is 
 not conditional payment of a secured debt, so as to release 
 the security" (x). 
 
 It has also been held that a promissory note, payable 
 by instalments, given contemporaneously to the holder of 
 a bill of sale to secure the same debt, and with a proviso 
 that on default of payment of any instalment the whole is 
 to become due, constitutes a defeasance of the bill of sale 
 
 («) Belshaw v. Bush (1851), 11 O. B. 191, at p. 206; cited and' 
 approved, Henderson v. Arthur, (1907) 1 K. B. 10, at p. 13, C. A. 
 (rent). 
 
 («) Davis v. Gyde (1835), 2 A. & E. 623. Held on demurrer that a 
 note given and received for rent does not extinguish the claim for rent 
 which is a debt of a higher degree, and that if such note be pleaded in 
 bar to an avowry it must be shown that the note was accepted in satis- 
 faction, or that by special circumstances or other circumstances 
 pleaded, it suspended the right of distress. But an agreement to take- 
 the note as conditional payment will be inferred from very slight 
 evidence, Palmer v. Bramley, (1895) 2 Q. B. 405, 0. A. 
 
 0«) WortUngton v. Wigley (1836), 3 Scott, 558. Held, that a plea 
 of part payment, or the delivery of bills in satisfaction of a bond, 
 after the day on which the money was by the condition made payable 
 is bad on general demurrer. Cf. Drake v. Mitchell (1803), 3 East, 
 251, as commented on in Be Davison (1884), 13 Q. B? I>. 50, at p. 54, 
 and Wegg Prosser v. Evans, (1895) 1 Q. B. 108, C. A., where it was 
 held that an unsatisfied judgment against a joint contractor on a 
 cheque was no bar bo an action on the original consideration against 
 the other joint contractor. 
 
 («) Be De-fries, (1909) 2 Ch. at p. 428 (specialty debt). 
 
Payment by Bill, Note, or Cheque. 357 
 
 within sect. 10 of the Bills of Sale Act, 1878 ($•). And 
 in Ex parte Mutfheid, it was heldl that when a judgment 
 creditor had issued a bankruptcy' note, hut afterwards took 
 the debtor's promissory mote, he could not, during the 
 currency of the note, obtain a receiving 1 order; for the 
 note, till dishonoured, must he treated as payment (z) . 
 
 If a bill or note be taken by a, creditor as conditional Effect of 
 payment, and he is guilty of laches in respect of it, the 
 bill or note is .then treated as absolute payiment, and as 
 between debtor and creditor the debt is discharged. 
 
 Thus, if a bill be indorsed on account of a debt and 
 dishonoured, and the holder omits to give notice of dis- 
 honour to the indortser, he cannot sue hint for the debt 
 any more than on the bill (a) ; and where a creditor took 
 the cheque of his debtor's agent, and was an unreasonable 
 tiine in presenting it, whereby his debtor's position was 
 altered, it was held, that, as against the debtor, the cheque 
 must be treated as absolute payment (&). 
 
 So, too, it was held at comMon law 1 that if the creditor 
 lost a negotiable bill which he had taken as conditional 
 payment, he was deprived 1 of his remedies, both on the 
 bill and on the consideration, for, " if the bill be lost the 
 condition on which payiment m|ay be defeated' does not 
 arise" (c). But the rigour of the common law is now 
 abated by sects. 69 arid 70 lof the Bills of Exchange Act, 
 ante, p. 267, which authorise application for a new bill 
 or an action on the lost bill. 
 
 The question of liability, on the consideration, where 
 
 O) Counsell v. Lond. # West. Discount Co. (1887), 19 Q. B. D. 
 512, C. A. 
 
 (s) Ex parte Matthew (1884), 12 Q. B. D. 506, C. A.; of. Re A 
 Debtor, (1908) 1 K. B. 344, C. A. 
 
 (a) Bridges v. Berry (1810), 3 Taunt. 170; of. Smith v. Mereer 
 (1867), L. K. 3 Ex. 51, as to an " approved bill " given without 
 indorsement. But see next page. 
 
 (b) Hopkins v. Ware (1869), L. B. 4 Ex. 268; as to payments by 
 country bank notes, see Lichfield Union v. Greene (1857), 26 L. J. 
 Ex. 141. 
 
 (c) Crowe v. Clay (1854), 9 Exoh. 604, at p. 608, Ex. Ch., action 
 for price of goods sold and on bill. 
 
S58 Bills of Exchange. 
 
 the party liable is discharged by the holder's laches from 
 liability on the bill, !w|as much discussed at the Hague Con- 
 ferences, because under the continental systems the holder'js. 
 duties are absolute duties, and not, as in England, duties, 
 to use reasonable diligence. The universal foreign opinion 
 appeared to be that the party liable on the consideration, 
 was only discharged if and in so far as he could prove 
 actual damage resulting from the holder's .laches. The 
 English cases seem 1 to assume that the party liable on the- 
 consideration is discharged irrespective of damage, see au- 
 thorities cited <mt&, p. 227. But it is to be noted (a) that 
 the question has not been argued before a court of appeal; 
 (b) that in the cases there Tvtas always some evidence of 
 actual damage; and (o) that there has been no. decision 
 on an unaccepted 1 bill. Suppose D. sells a motor-car to 
 A. for 50(W. A. pays for it by a bill drawn on B. in 
 favour of D. B. refuses to accept, and by some mistake- 
 D., the seller, gives notice to A., the buyer, two days 
 late. Can A. keep the 'motor-oar without paying for it?' 
 D. has only a piece of paper on Hvhich no one is liable. 
 Absolute Though the general effect oif giving and taking a bill. 
 
 , paymen ^ ■najoe is that the debt is conditionally paid, there is 
 
 nothing to prevent its 1 being given and taken as absolute- 
 payment if the parties so intend (&), that is to say, the 
 creditor may receive the bill or note in absolute discharge- 
 of the debt, trusting solely to his remedies on the instru- 
 ment. It is a question of fact what the intention of the- 
 parties was (e). Eor instance, the creditor may be offered 
 cash, but may prefer to take a bill instead (/) . Where the- 
 debtor is not a party to the instrument, perhaps the infer- 
 ence of absolute payment more readily arises (g) . 
 
 (d) Benjamin on Sales, 4th ed. p. 732; Cowasjee v. Thompson 
 (1845), 5 Moore, P. C. 165; of. Sard v. Rhodes (1836), 1 M. & W. 
 153; Sibree v. Tripp (1846), 15 M. & "W. 23. 
 
 (e) Goldshede v. Cottrell (1836), 2 1. & W. 20. 
 
 (/) Anderson v. Hillies (1852), 12 C. B. 499, and cases there cited. 
 (^) Cf. Camidge v. Allenby (1827), 6 B. & O. 373, at p. 384 
 (country bank notes); Smith v. Mercer (1867), L. E. 3 Ex. 51 
 
Payment by Bill, Note, or Cheque. 
 
 35U 
 
 Where there is a disputed liability, it may be compro- Payment by- 
 raised by tbe payment of a lesser sum than that claimed!, 8 ecurity for 
 but the general rule of law is that -where a liquidated, le8ser 8um ' 
 sum! is due, it cannot be discharged by, the payment of a 
 smaller amount, for there is no consideration for the 
 creditor's promise to forego the balance (h) . But by a 
 curious refinement on this rule, it has been held! that a 
 liquidated debt may be discharged by the acceptance in 
 satisfaction of a negotiable security for a lesser sum, even 
 if the debtor himself be the only, person liable on the 
 instrument (i) . 
 
 There must, however, be an acceptance in satisfaction. Cheque sent 
 If a cheque for a smaller sum 1 be sent in settlement of a received'on" 
 larger sum', the creditor can refuse to receive the cheque account, 
 in satisfaction, even though he dloes not return it, and he 
 may then sue for the balance. In a case where the debtor 
 sent his own cheque in settlement of a claim 1 for damages 
 for breach of contract, and the creditor retained the cheque, 
 sending back a receipt on account, Bpwen, L.J., says: 
 " If a person sends a sum of money on the terms that it is 
 to be taken, if at all, in satisfaction of a larger claim, and 
 if the money is kept, it is a question of fact as to the ter'ros 
 upon which it is so kept. Accord and satisfaction imply 
 an agreement to take the money in satisfaction of the 
 claim in respect of which it is sent " (fc) . But transactions % 
 with a third party stand on a different footing. Thus 
 where a father sent a cheque for a smaller sum to settle a 
 debt incurred by his son, it was held that the creditor must 
 
 (approved bills), where absolute payment was suggested as an alterna- 
 tive; and see ante, p. 224. 
 
 (A) Foahes v. Beer (1884), App. Cas. 605, H. L. See notes to 
 Cumber v. Wane, 1 Smith, L. C. ed. 12, p. 376. 
 
 (j) Sibree v. Tripp (1846), 15 M. & W. 23 (promissory note of the 
 debtor); Curlewis v. Clarice (1849), 3 Exoh. 375 (acceptance of third 
 person); Goddard v. O'Brien (1882), 9 Q. B. D. 37 (debtor's own 
 cheque); Bidder v. Bridges (1887), 37 Oh. D. 406, O. A. (cheque 
 of debtor's solicitor). 
 
 (£) Day v. McLea (1889), 22 Q. B. D. 610, C. A. at p. 613. 
 
360 Bills of Exchange. 
 
 either return the cheque or keep it in satisfaction of the 
 debt (I). 
 Bill or note When an action is brought by the holder of a dis- 
 
 of debt. honoured bill, note, or cheque against an immediate party 
 
 liable thereon ('mi), he may sue on the consideration as well 
 as on the instrument, and use the instrument as evidence. 
 
 Thus in an action on the money counts, where the 
 plaintiff was both drawer and payee of the bill, and the 
 acceptor was the defendant, it was held that the bill was 
 evidence that the defendant was indebted to the plaintiff 
 in the amount of the bill (n) . Aliter, if drawer and payee 
 were different persons, for then the prwid facie presump- 
 tion would be that the accepter owed the money to the 
 drawer and not to the payee (o) . Where an action for 
 money lent was brought on a conditional note by payee 
 against maker, it was held 1 the instrument was no evidence 
 of inoney lent. "An ordinary promissory note," says 
 Bayley, B., "is evidence of money lent as between the 
 payee and the maker, but then it must be a promissory note 
 payable at all events" (p). In 1844 defendant gave 
 plaintiff a note for 231., which was expressed to be for 
 interest to date on a note for 1177. In an action on an 
 account stated, this was held' to be evidence of a subsisting 
 debt of 1171. in 1844(g). 
 
 la an action by a special indorsee against his indorser, 
 the bill or note, perhaps, is not sufficient evidence, because 
 presentment and notice of dishonour are ordinarily con- 
 ditions precedent to liability (r), but if those conditions are 
 
 (l) Hirachand v. Temple, (1911) 2 K. B. 330, C. A., doubting 
 Goddard v. O'Brien, supra. 
 
 (m) As to immediate and remote partiea, see ante, p. 111. 
 
 (») Thompson v. Morgan (1811), 3 Camp. 101; of. Shades v. 
 Gent (1821), 5 B. & Aid. 244, at p. 245, as to account stated. 
 
 (o) Early v. Bowman (1831), 1 B. & Ad. 889. 
 
 (p) Morgan v. Jones (1830), 1 Cr. & J. 162, at p. 167; cf. Fryer 
 ,. Howe (1852), 12 C. B. 437 (account stated). 
 
 (q) Perry v. Blade (1845), 8 Q. B. 115. 
 
 (r) Bwgh v. Legge (1839), 5 M. & W. 418; cf. Jardine v. Payne 
 (1831), 1 B. & Ad. 663, unstamped bill. 
 
Payment by Bill, Note, or Cheque. 3t >l 
 
 fulfilled, the instrument is prima facie evidence of the 
 debt (s) . If the indorsement were in blank, the instru- 
 ment of itself would be no evidence that the indorser was 
 indebted to the holder (t), for obviously the holder might 
 be the third or fourth bearer to whom it had been trans- 
 ferred. 
 
 Where a creditor expressly or impliedly authorises his Post Office, 
 debtor to discharge his debt by posting a bill or cheque 
 to him, the posting of the letter containing the bill or 
 •cheque operates as a delivery thereof to the creditor, and 
 if the bill or cheque is lost or stolen the creditor takes the 
 risk. Thus if a cheque is sent by post in reply to a letter 
 requesting payment of a debt, and the cheque is stolen 
 and cashed by the thief, the debt is deemed to have been 
 paid (m) . Of course, if the cheque is not -oasbed, and 
 does not get into the hands of a holder in due course, the 
 creditor can avail himself of the remedies given by sects. 
 69 and 70 of the Act, ante. It is now the custom to remit 
 money by crossed cheque, and not by sending Treasury 
 notes through the post (a;) . 
 
 (s) Burmester v. Hogarth (1843), 11 M. & W. 97, at p. 101; of. 
 ■Watkins v. Wake (1841), 7 M. & W. 488. 
 
 (<) Ibid.. 
 
 («) Norman v. Richetts (1886), 3 T. L. R. 186, C. A.; Thairlwall 
 v. Great Western Railway, (1910) 2 K. B. 509; and see notes to 
 .sect. 21. . 
 
 (x) Mitchell Henry v. Nm-wieh Union (1917), 34 T. L. R. 77. 
 
362 
 
 Bills of Exchange. 
 
 NEGOTIABLE SECURITIES FOR MONEY. 
 
 Negotiable 
 securities for 
 money. " 
 
 The law relating to negotiable securities for money,, 
 other than bills, notes, and' cheques, is as yet very im- 
 perfectly developed, and is, therefore, unsuited for presen- 
 tation in a codified form . The best plan seems to , be to 
 note the main decisions on each class of instrument which, 
 either is, or has been sought to be treated as, negotiable. 
 The history of the doctrine of negotiability up to 1875 is 
 exhaustively traced in the judgment of the Exchequer 
 Chamber in Goodwin v. Roburts (a) . The case is of great 
 importance as showing the progressive character of the 
 law, so that instruments which at one time are not 
 ■negotiable may, by the ; usage of the English money 
 market, afterwards become so (&) . 
 
 The tests of negotiability are thus stated by Black- 
 burn, J., who 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 yro- 
 tempore, then it is entitled to the name of a ' negotiable- 
 instrument,' and the property in it passes to a bona 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 transferable, or, though it be accustomably- 
 transferable, yet, if its nature be such as to render it. 
 
 (a) Goodwin v. Bobarts (1875), L. E. 10 Ex. 337; affirmed, 1 
 App. Cas. 476 (foreign scrip). See an article on negotiability and. 
 estoppel, by Ewart, Law Quarterly Review, April, 1900, p. 135. 
 
 (6) Compare the gradual rise of ;,a quasi-niegotiability in documents 
 of title to goods as shown by the successive Factors Acts. See- 
 Chalmers' Sale of Goods Act, 6th ed. p. 132. 
 
Negotiable Securities for Money. 363 
 
 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 in it to a vendee, however 
 bond fide, if the transferor himself have not a good title to 
 it, and the transfer be made out of market overt " (c) . 
 
 This statement appears to' require qualification in two 
 respects, for first, an instrument, not otherwise nego- 
 tiable, may be made negotiable by statute; and secondly, 
 foreign government bonds to bearer may undoubtedly be 
 negotiable, yet the holder cannot sue the foreign govern- 
 ment upon them in the Courts of this country; but the 
 explanation may be that the exemption of a foreign 
 government from suit in this country is a personal 
 exemption, and does not arise out of any defect of title 
 on the part of the holder. 
 
 As regards instruments which are " accustomably 
 transferable," it is to be noted that the quality of nego- 
 tiability is an incident annexed by the usage of the 
 English money market, and is not determined by the law 
 of the place of issue (d) . 
 
 The issue of bank. notes is subject to certain statutory Banknotes, 
 restrictions for the protection of the limited monopoly 
 given to the Bank of England, \ante, p. 74, and for 
 stamp purposes they are also subject to special regula- 
 tions, post, p. 396. But as regards negotiability, bank 
 notes are on the same footing as other promissory notes 
 payable- to bearer on demand. This has been unques- 
 tioned law since the leading case of Miller v. Race (e), 
 decided in 1791, where Lord Mansfield says that bank 
 
 (e) Crouch v. Credit Fonder (1873), L. R. 8 Q. B. 373, at p. 381, 
 citing the notes to Miller v. Race, 1 Smith's L. C. ed. 12, p. 525; of. 
 Sitnmonst v. London Joint Stock Bunk, (1891) 1 Ch. 270, at p. 294, 
 per Bowen, L.J., and on appeal, per Ld. Herschell, (1892) A. C. at 
 p. 215. 
 
 (d) Picker v. London and County Bank (1887), 18 Q. B. D. 515, 
 C. A. (Prussian bonds); of. Colonial Bank v. Cady (1890), 15 App. 
 Cas. 267; and in Court below, 38 Ch. D. at p. 404. 
 
 (e) Miller v. Race (1791), 1 Burr. 452; 1 Smith's L. C. 9th ed. 
 p. 491, and notes. 
 
364 Bills of Exchange. 
 
 Banknotes, notes "are treated as money, as cash, in the ordinary 
 course and transaction of business by the^ general consent 
 of mankind, which gives them the credit and currency of 
 money to all intents and purposes. . . It has been 
 quaintly said that the reason why money cannot be 
 followed is because it has no earmark, but this is not 
 true. The true reason is upon the account of the 
 currency of it, it cannot be recovered after it has passed 
 in currency." Thus, where a money-changer in Paris, 
 twelve months after he had received notice of a robbery 
 of bank-notes at Liverpool, changed one of the stolen 
 notes in Paris for a stranger, whom he merely required! 
 to produce hie passport and write his name on the note, 
 it was held that he got a good title, and the fact that ha 
 forgot to consult the notice was not evidence of fraud or 
 notice, which alone could affect his title (/) . 
 
 Bank post Bank post bills are mainly used' for transmitting money 
 
 from one branch of a bank to another. They are nego- 
 tiable instruments, and are usually drawn at seven days 
 or other short date after sight (g) . 
 
 Foreign bonds l n Glqjn v. Baker, in 1811, East India bonds belonging 
 to the defendant were misappropriated by his bankers, 
 who replaced them with bonds belonging to the plaintiff. 
 The bonds were not in terms negotiable, though they 
 were indorsed in blank by the payee. It was held that 
 they were not negotiable, and that the defendant could 
 not retain the substituted bonds as against the plain- 
 tiff (h). But, as was pointed out in Goodwin v. Robttrts, 
 "the inconvenience which would have arisen from this 
 decision was remedied by the immediate passing of the 
 East India Company Bonds Act, 1811 (51 Geo. 3, c. 64), 
 
 (f) Raphael v. Bank of England (1855), 17 C. B. 161. 
 
 O) Forbes v. Marshall (1855), 24 L. J. Ex. 305 (where form is 
 given); of. Willis v. Bank of England (1835), 4 A. & E. 21; Hart 
 on Banking, p. 534. As to bank post bills issued by Bank of 
 England and in Scotland, see 5 Geo. 3, o. 49. 
 
 (h) Glyn v. Baker (1811), 13 East, 509. 
 
Negotiable Securities for Money. ; ^5 
 
 by which bonds of the East India Company were made Foreign bonds 
 transferable by delivery "(»"). ' to bearer. 
 
 In Gorgietr v. Mievtttle, in 1824, Prussian Government 
 bonds, payable to bearer, were wrongfully pledged by 
 the plaintiff's agent. On proof that these bonds were 
 treated as negotiable in the London money market, it 
 was- held that the plaintiff could not recover them from!- 
 the pledgee, who had acted in good faith (k) . This case 
 has been frequently approved and followed. 
 
 In Lang V. Smyth, in 1831, Neapolitan obligations to 
 bearer called " Bordereaux " were issued with coupons 
 attached. The plaintiff's agent wrongfully pledged the 
 bonds without the coupons, and the jury found that the 
 bonds were not negotiable without the coupons. It was 
 held that the plaintiff could recover the bonds (Z) . 
 
 In Att.-Gen. v. Bouwens, in 1838, the question was, 
 whether probate duty was payable on certain Russian 
 and Danish bonds to bearer. On proof that the bonds 
 were treated as negotiable in the English market, it was 
 held that they were negotiable instruments constituting 
 assets in England. "All these instruments," says Lord 
 Abinger, " have been clearly framed with a view to their 
 becoming subjects of sale, and easily transmissible from 
 hand to hand" (m). 
 
 In Picker v. London and County Bank, in 1887, 
 Prussian bonds were stolen from the plaintiff and pledged 
 with the defendants. The bonds were issued with de- 
 tached coupons. It was proved that the bonds were treated 
 in Prussia as payable to bearer and negotiable by delivery 
 apart from the coupons. But there was no evidence that 
 
 (4) Goodwin v. Mobarts (1875), L. R. 10 Ex. 337, at p. 354. 
 
 (ifc) Gorgier v. Mieville (1824), 3 B. & 0. 45. 
 
 (Z) Lang v. Smyth (1831), 7 Bing. 284, as explained, Goodwin v. 
 Robarts (1875), L. R. 10 Ex. 337, at p. 356. 
 
 (m) Att.-Gen. v. Bouwens (1838), 4 M. & W. 171, at p. 190; of. 
 Heseltine v. Siggers (1848), 1 Exoh. 856, where Spanish stock was 
 held to be negotiable, and therefore not within the 17th section of the 
 Statute of Frauds. 
 
366 Bills of Exchange. 
 
 Foreign bonds they were so treated in the English money market. Held 
 that they were not negotiable, and that the plaintiff could 
 recover them. "If," says Lord Esher, "all that can be 
 proved is that by the law or custom in Prussia the instru- 
 ment is negotiable, then the answer is that an English 
 Court and English merchants are not bound by a law or 
 custom of trade in Prussia. To prove that an instrument 
 is negotiable in the sense required there must be something 
 to make it so by English law" (n). 
 
 In London and County, Bank v. River Plate Bank, in 
 1888, negotiable foreign bonds were stolen from the 
 defendants by their manager and pledged with the plain- 
 tiffs. Subsequently the manager by fraud obtained the 
 bonds, or bonds of a like character, back from the plaintiffs, 
 and restored them to the defendants. Held, that the de- 
 fendants were entitled to retain the bonds so restored (o) . 
 
 In Sheffield v. London Joint Stock Bank, in 1888, M., 
 a money-dealer, made an advance on certain negotiable 
 bonds and other securities belonging to S. The money- 
 dealer deposited them and other securities with the bank 
 to secure a large running account, and then became 
 bankrupt. The bank claimed to retain the securities 
 belonging to S. against the general balance due from the 
 money-dealer. It was held that the bank could not do 
 so, whether the securities were negotiable or not, for they 
 had notice that the securities were not the money -dealer's 
 property. S., therefore, was entitled to redeem 1 his securi- 
 ties on paying the bank the amount he owed the money- 
 dealer: " He was a money-dealer," says Lord Mac- 
 naghteh, " he lent money to customers on securities which 
 they deposited with him. He pledged those securities 
 
 (m) Picker v. London and County Bank (1887), 18 Q. B. D. 515, 
 at p. 518. C. A.; approved, Williams v. Colonial Bank (1888), 38 
 CH. D. at p. 404, C. A. ; and Lloyds Bank v. Smss Bankverein (1912), 
 17 Com. Oas. 280, at p. 297, per Hamilton, J. 
 
 (o) London and County Bank v. River Plate Bank (1888), 21 
 Q. B. D. 535, C. A.; affirming.S. O., 20 Q. B. D. 232. 
 
Negotiable Securities for Money. #67 
 
 to the banks who supplied him with the money. The 
 hanks knew that in most cases, if not in all, the securities 
 which he deposited with-»them were not his own absolute 
 property. That information was conveyed by the nature 
 and extent of his business" (p). 
 
 In London Joint Stock Bank v. Simmons, in 1892, 
 plaintiff deposited with his stockbroker, for safe custody, 
 certain Cedula bonds which were payable to bearer. The 
 broker wrongfully sold the plaintiff's bonds, but purchased 
 others of the same kind, and entered them in his books in 
 the plaintiff's name, thus replacing what he had taken. 
 Afterwards he pledged the new bonds en bloc with securi- 
 ties belonging to other customers with the defendant bank 
 to secure an advance to himself. Held, that the bank 
 was entitled to retain the bonds against the advance, it 
 being a pledgee for value and in good faith of negotiable 
 instruments (q) . 
 
 In Variables v. Baring Brothers, in 1892, American 
 railway bearer bonds were stolen from the defendants. 
 The loss of the bond's was duly advertised. The plaintiffs 
 were French bankers who, in good faith, had made 
 advances to a customer on the bonds. Held, that the 
 plaintiffs had a good title to the bonds and the interest 
 due on them, as, at the time when they took them, they 
 had no notice of the theft (r) . 
 
 In Edelstein v. Sdhuler & Co., in 1902, American rail- 
 
 (p) Sheffield v. London Joint Slock Bank (1888), 13 App. Cas. 333; 
 reversing the decision of court below reported as Easton v. London 
 Joint Stock Bank (1886), 34 Ch. D. 95, O. A. Having regard to. 
 the next case, this decision must be regarded as a finding on the parti- . 
 cular facts, and not as laying down any general principle. 
 
 (g) London Joint Stock Bank v. Simmons, (1892) A. C. 201, re- 
 versing the Court of Appeal, (1891) 1 Oh. 271. Cf. Bentinck v. 
 London Joint Stock Bank, (1893) 2 Ch. 120 (negotiable securities 
 lodged with stockbroker, who pledges them with his bankers) ; Lloyds 
 Bank v. Swiss Bankverein (1912), 17 Com. Cas. 280, affirmed, 18 
 Com. Gas. 79, C. A. (negotiable securities wrongly pledged, return of 
 equivalent but not identical securities). 
 
 O) Venables v. Baring Brothers, (1892) 3 Ch. 527. 
 
368 Bills of Exchange. 
 
 way bonds payable to the bearer, or, in case of registration, 
 to the registered holder, were stolen by the plaintiff's clerk, 
 and sold by him on the Stock Exchange. It was held 
 that these were negotiable instruments, and that the price 
 of the bonds could not be recovered from the stockbroker, 
 who took them in good faith, and disposed of them on the 
 Stock Exchange (s) . 
 
 As to United States municipal .and corporation bonds, 
 see Daniel on Negotiable Instruments, Chap. XL VIII. 
 Non-liability In Tuy cross v. Dreyfus, in 1877, bonds were issued by 
 "overnmmt ^ ^ >eruv i an Government through Dreyfus Brothers, its 
 and its agents. English agents, and the surplus imports of guano were 
 stated to be hypothecated for the payment of the bonds. 
 It was held that no action could be maintained in respect 
 of the bonds or the guano received by Dreyfus Brothers. 
 " The municipal law of this country," says Jessel, M. K., 
 " does not enable the tribunals of this country to exercise 
 any jurisdiction over foreign governments as such. The 
 result, therefore, is that these so-called bonds amount to 
 nothing more than engagements of honour " (t); and 
 James, L. J., adds, " You cannot sue the Peruvian govern- 
 ment, and it would be a monstrous assumption of juris- 
 diction to endeavour to sue a foreign government 
 indirectly, by making its agents in this country defen- 
 dants, and then saying you have got the money of the 
 government, and you ought to apply that" (w). 
 Circular Circular notes are negotiable instruments. In a case 
 
 notes. j n 1867, where the law and practice respecting them was 
 
 fully discussed, the plaintiff's agent remitted to him the 
 letter of indication and notes by post. The notes were 
 lost, and it was held that the issuing banker could debit 
 
 (s) Bdelstein v. Schiller ti; Co., (1902) 2 K. B. 144. 
 
 (<) Twycross v. Dreyfus (1877), 5 Ch. D. 605, O. A., see at p. 616; 
 and of. National Bolivian Navigation Co. v. Wilson (1880), 5 App. 
 Cas. 176. 
 
 («) Twycross v. Dreyfus, supra, at p. 618. See further as to the 
 non-liability of the English agent issuing the bonds, Goodwin v. 
 Robarts (1875), L. R. 10 Ex. 337, at p. 344. 
 
Negotiable Securities for Money. 369 
 
 his account with the amount of the notes, unless he offered 1 
 a proper indemnity. The Court there say: "Upon the 
 truo construction of the letter of indication and circular 
 notes, it is not obligatory upon the holder to cash the 
 circular notes, though he purchases the right to do so. In 
 the event of his not requiring to use them abroad, he may, 
 after reasonable notice of his electing not to use them 1 , 
 require repayment at the banker's hands. . . . The corre- 
 spondent who cashes a circular note ought to, and 
 commonly does, for his own protection, look at the letter 
 of indication, for the purpose of identifying the holder of 
 the circular note; but his doing so is not made a condition 
 precedent. If he cashes the circular note for the person 
 mentioned in the letter of indication, he has recourse 
 against the banker, although from civility, over-confidence, 
 or mere omission, he may not have asked for the letter of 
 indication. And, on the other hand, if after the letter of 
 indication has been properly filled in by the rightful owner 
 with his signature, a foreign correspondent cashes a 
 circular note for a thief, who has succeeded in stealing 
 the letter of indication and circular note, and in forging 
 the name of the holder, no care in looking at the letter of 
 indication can eke out a right to recover against the banker, 
 as upon a payment to the right person " (x). 
 
 The term " debenture " is a term of uncertain exten- Debentures, 
 sion {y). " You may," says Lindley, L.J., " have mort- 
 gage debentures which are charges of some kind on pro- 
 perty — you may have debentures which are bonds; and if 
 this instrument were under seal, it would be a debenture 
 of that kind. You may have a debenture which is nothing 
 more than an acknowledgment, of indebtedness " (z). 
 
 (x) Conflans Quarry Co. v. Parker (1867), L. R. 3 C. P. 1; see 
 pp. 10 and 12. See further Paget on Banking, ed. 2, p. 66. 
 
 (y) Buckley on the Cjompaniea Acts, 5th ed. p. 159. 
 
 (z) British India Steam Co. v. Inland Revenue (1881), 7 Q. B. D. 
 165, at p. 172, where the question at issue was the stamp; cf. Edmonds 
 v. Blaina Co. (1887), 36 Oh. D. at p. 218 ; English Investment Co. 
 v. Brunton, (1892) 2 Q. B. at p. 712, C. A. 
 
 C. 24 
 
370 Bills of Exchange. 
 
 Debentures. Two points seem pretty clear. First, when a money 
 
 obligation, bearing the name of a debenture, is issued by 
 a company, it may be stamped as a debenture, though by 
 reason of its form it might also fall under some other- 
 stamp definition (a) . Secondly, if an instrument issued 
 as a debenture, is in substance a promissory note within 
 the definition given by sect. 83 of the Act, any objection 
 to its negotiability which could formerly have been urged 
 by reason of its being under seal, appears now to. be 
 removed 'by sect. 91 (2) of the Act, mite, p. 324. 
 
 Prima facie no doubt a debenture is not a negotiable 
 instrument, and is only assignable in like manner and 
 subject to the like conditions as an ordinary chose in 
 action; but the question must be determined by refer- 
 ence to the form of the particular instrument, the usage 
 of the money market, and the facts of the particular case. 
 It is to be noted that though an instrument may not be 
 negotiable in the proper sense of the term, it may have 
 a quasi negotiability by estoppel, that is to say, particular 
 -parties may be precluded from denying it the qualities of 
 negotiability in particular cases. 
 
 In Re Blpkely Ordnance Co., in 1867, pursuant to an 
 antecedent contract with D., debentures were issued by 
 the company payable to "D. or the bearer hereof," and 
 were transferred for value. It was held that, though the 
 holder might not be able to sue in his own name, he 
 might prove in the winding-up in his own name, without 
 reference to any equities between the company and D., the 
 company being estopped by the form of the instru- 
 ment (6). 
 
 In Be Natal Investment Co., in 1868, debentures were 
 issued by the company payable to "C, his executors or 
 
 assigns, or the holder for the time being of this debenture 
 
 i 
 f- — — . . 
 
 (a)' British India Steam Co. v. Inland Revenue (1881), 7 Q. B. D 
 165. 
 
 (6) Re Blahely Ordnance Co. (1867), L. E. 3 Ch. App. 154. 
 
Negotiable Securities for Money. 37*1 
 
 bond," and were transferred for value. It was held that Debentures, 
 the case was distinguishable from the last one by the 
 different circumstances under which the debentures were 
 issued, and that the holder could only prove in the 
 winding-up subject to any equities between C. and the 
 company (c) . 
 
 In Be General Estates Co., in 1868, the company issued 
 debenture bonds payable to C. or, order, which were, 
 indorsed by him for value. It was held that as the com- 
 pany had power to issue negotiable instruments, the 
 indorsee could prove in the winding-up without reference 
 to any equities between the company and C, and semble, 
 that the instruments were promissory notes (d) . 
 
 In Be Imperial Land, Co., in 1870, a company issued" 
 debenture bonds payable to bearer which were afterwards 
 sold in the open market. It was held by Malins, V.-C, 
 that these instruments were on the footing of promissory 
 notes, and that the holders could prove in the winding-up 
 without reference to any equities between the company 
 and the person to whom they were issued (e). 
 
 In Webb v. Heme Bay. Commissioners, in 1870, assign- 
 able debentures (form not given) were issued by the 
 commissioners which purported to have been executed 
 pursuant to statutory powers, and it was held that the 
 commissioners were estopped from alleging that the 
 debentures were issued in contravention of their statutory 
 powers, and that a mandamus could issue to compel them 
 to pay the interest on the debentures (/) . 
 
 In Crouch v. Credit Fancier, in 1873, the company 
 issued debentures payable to bearer, subject to conditions 
 as to drawings, indorsed on the back. Some of thesei 
 
 (c) Re Natal Investment Co. (1868), L. R. 3 Oh. App. 355, see at 
 p. 358. 
 
 (d~) Re General Estates Co., Ex parte City Bank (1868), L. R. 3 
 Ch. App. 758, see at p. 762, explaining the last case. 
 
 (e) Re Imperial Land Co. of Marseilles, Ex parte Colborne (1870), 
 L. R. 11 Eq. 478. 
 
 (/) Webb v. Ber'M Bay Commissioners (1870), L. R. 5 Q. B. 642. 
 
 24 (2) 
 
3 ?2 Bills op Exchange. 
 
 Debentures, debentures 'were stolen, and afterwards purchased by the 
 plaintiff, who acted in good faith. The plaintiff sued' the 
 company, who declined to pay, as they had notice of the 
 robbery. It was admitted that similar instruments had 
 been treated as negotiable. It was held that the usage 
 did not make these instruments negotiable, as being con- 
 trary to general law, and it was doubted whether an 
 instrument under seal could be a promissory note {g) . 
 This case was doubted in QooAwin v. Bobarts, in 1875, 
 where the Court say that the case might be supported " on 
 the ground that there was substantially no proof whatever 
 of general usage. We cannot concur in thinking that if 
 proof of general usage had been established it would 
 have been sufficient ground for refusing to give effect to 
 it that it did not form part of what is called the ancient 
 law merchant" (h). 
 
 In Be Bomfotd Canal Co., in 1883, the company issued 
 assignable debentures (form not given). Some were 
 transferred' for value to C, and others were deposited 
 with D. Held, that C. could prove without reference to 
 equities between the company and the person to whom'* 
 the debentures were issued, but that D. took only as an 
 equitable assignee, and could only prove for the amount 
 he had advanced. Kay, J., reviews the previous cases 
 and sums up their effect as follows: " Where a company 
 have power to issue securities, an irregularity in the issue 
 cannot be set up against even the original holder if he has 
 a right to presume omnia rite esse acta. If such security 
 be legally transferable, such an irregularity, and, a 
 fortiori, any equity against the original holder, cannot be 
 asserted by the company against a bond fide transferee for 
 value without notice; nor can such an equity be set up 
 against an equitable transferee, whether the security was 
 transferable at law or not, if by the original conduct of the 
 
 O) Crouch v. Credit Fonoier (1873), L. R. 8 Q. B. 374. 
 
 (A) Goodwin v. Bobarts (1875), L. K. 10 Ex. 337, at p. 356, Ex. Ch. 
 
Negotiable Securities foe Money. 373 
 
 company in issuing the security, or by their subsequent Debentures, 
 dealing with the transferee, he has a superior equity " (i). 
 
 In Bechuanaland Exploration Co. v. London Trading 
 Bank, in 1898, the plaintiffs held certain bearer deben- 
 tures issued by an English company. The plaintiffs' 
 secretary stole the debentures, and pledged them with -the 
 defendant bank for advances made. The defendants 
 received the debentures in good faith, and it was shown 
 " that by the usage of the money market such debentures 
 were treated as negotiable by delivery. It was held that 
 the debentures were negotiable by custom, and that the 
 defendants were entitled to retain them (fc) . 
 
 This case was followed in 1902 in Edelstein v. Schuler 
 & Co., where it was further held that the usage to treat 
 these instruments as negotiable had been so often 
 established that it was no longer necessary to prove it 
 in evidence (I) . 
 
 By sect. 106 of the Companies Consolidation Act, 
 1908 (8 Edw. 7, c. 69), a doubt is removed as to the 
 validity of debentures to bearer issued in Scotland, and 
 they are declared to be valid and binding according to their 
 terms . 
 
 A banker's deposit note or receipt is not a negotiable Deposit notei. 
 instrument (to). 
 
 In Partridge v. Bank of England^ in 1846, dividend Dividend 
 warrants payable to J. P., without the addition of the warraut8 - 
 words " order " or " bearer," were held not to be nego- 
 tiable, although they bore J. P.'s receipt, and it was the 
 practice of bankers to treat them as negotiable (n) . This 
 
 (0 Me Romford Canal Co. (1883), 24 Oh. D. 85, at p. 92. 
 
 (k) Bechuanaland Exploration Co. v. London Trading Bank, TAd., 
 (1898) 2 Q. B. 658. 
 
 (I) Edelstein v. Schuler f Co., (1902) 2 K. B. 144. 
 
 (m) Clegg v. Burnett (1887), 56 L. T. 775; as to deposit note with 
 cheque form on back, see Be Billon (1890), 44 Oh. D. 76; -and of. 
 Beauolerk v. Greaves (1886), 2 Times L. R. 837, receipt for bonds, 
 and Hart on Banking, pp. 537 — 545. As to assignment of beneficial 
 interest by surrender and taking out a new deposit note in name of 
 assignee, see McEneany v. Shelvin (1912) 1 Ir. Rep. 278, O. A. 
 
 (re) Partridge v. Bank of England (1846), 9 Q. B. 396, Ex. Ch. 
 
374 
 
 Bills of Exchange. 
 
 Dividend 
 warrants. 
 
 Exchequer 
 bonds. 
 
 Exchequer 
 bills. 
 
 case has since been doubted (o). And now by sect. 8 of 
 the Act, ante, p. 28, instruments within the Act are nego- 
 tiable unless they contain words prohibiting transfer. 
 Apart from some peculiarity in the form of the par- 
 ticular instrument (p), a dividend warrant is practically an 
 ordinary cheque. By sect. 97 (3) (d), ante, nothing in the 
 Act is to affect "the validity of any usage relating to 
 dividend warrants or the indorsement thereof." This en- 
 actment was probably intended to protect the usage of' 
 paying dividend warrants on the indorsement of one of 
 several payees, but otherwise it seems to contemplate them 
 as falling within the Act, where their form satisfies its 
 requirements. 
 
 Exchequer bonds, unless registered, are negotiable in- 
 struments payable to bearer, with bearer coupons attached. 
 They are regulated by 29 & 30 Vict. c. 25; 52 Vict. c. 6; 
 and 5 & 6 Geo. 5, c. 55. For history of these instruments 
 see Dictionary of Political Economy. 
 
 Exchequer bills are negotiable instruments . They were 
 invented about the year 1695 by Charles Montagu, the 
 Chancellor of the Exchequer under William III., in order 
 to supply the wants of the nation at the time of the great 
 re-coinage. They were first regulated by the statute 
 48 Geo. 3, c. 1. That Act is now superseded by the 
 Exchequer Bills and Bonds Act, 1866 (29 & 30 Vict, 
 c. 25), as amended by the Treasury Bills Act, 1877 (40 & 
 41 Vict. c. 2). Exchequer, bills are, at the option of the 
 holder, current for a period of five years, but Jhey may be 
 sent in for payment, if the holder wishes it, once in the 
 year at a fixed date, and during the six months preceding 
 that fixed date they may be used for the payment of taxes. 
 The interest on Exchequer bills is fixed half-yearly, and 
 varies with the market rate of interest. Their negotia- 
 
 te) Goodwin v. Robarts (1875), L. R. 10 Ex. 337, at p. 354. 
 
 (p) Cf. Paget on Banking, ed. 2, p. 280; cf. ThairVwall v. Great 
 Northern Railway,, (1910) 2 K. B. 589 (dividend warrant lost in 
 post and cashed by thief). 
 
Negotiable Secueities foe Money. 375 
 
 bility was first affirmed -in 1820 in a case where an Ex- 
 chequer bill to " or order " was improperly pledged 
 
 by an agent of the owners (q). In 1846 the question 
 arose whether the general lien of bankers applied to these 
 instruments. It was held that it did, though the circum- 
 stances under which the particular bills had been deposited 
 were such as to exclude the lien. " Exchequer bills," said 
 Lord Campbell in that ease, "are negotiable securities 
 passing by delivery. The holder of negotiable securities 
 is to be assumed to be the owner, and third parties acting 
 bond fide may treat with him as owner. . . The right 
 acquired by a general lien is an implied pledge, and where 
 it would arise (supposing the securities to be the property 
 of the apparent owner) I think it equally exists if the 
 party claiming it has acted in good faith, although the 
 subject of that lien should turn out to be the property of a 
 stranger " (r). 
 
 Pay and pension warrants issued by the Paymaster Pay and 
 General are not negotiable instruments (s) . ' warrants. 
 
 Post office orders it seems are not negotiable instru- Post office 
 ments. Thus, in The Fine Art Society v. Union Bank, jSdSto. 
 in 1886, the plaintiffs' manager and the plaintiffs both 
 banked with the defendants. The manager paid in to his 
 owcuaccount post office orders belonging to the plaintiffs, 
 and the defendants cashed them. The Post Office regu- 
 lations provide that where a post office order is presented 
 by a banker it is sufficient if it bears the stamp of the 
 banker, although it is not signed 1 by the payee. It was 
 held that unsigned post office orders were not negotiable 
 by delivery, and that the bank were liable for the conver- 
 sion of the orders. The effect of the regulation was only 
 to make " the signature of the banker a substitute for the 
 
 (?) Woohey v. Pole (1820), 4 B. & Aid. 1; see at pp. 10 and 13; 
 but as to the effect of a blank in other cases, see France v. Clark 
 (1884), 26 Ch. D. 257, at p. 262, O. A. 
 
 (r) Brandao v. Barnett (1846), 12 CI. & F. 787, at p. 805, H. L. 
 
 («) Jones # Co. v. Coventry, (1909) 2 K. B. 1029, at pp. 1040, 1041. 
 
376 Bills of Exchange. 
 
 signature to the receipt of the. original payee" (t). As 
 to post office orders, see further sect. 23 of the Post Office 
 Act, 1908 (8 Edw. 7, c. 48). As to postal orders, see 
 sects. 24 and 25 of that Act, and the regulations made, 
 thereunder. For a few months after the outbreak of war 
 postal orders were made legal tender under the powers con- 
 ferred by sect. 1 (6) of the Currency and Bank Notes Act, 
 1914 (4 & 5 Geo, 5, c. 14). 
 Scrip. j n Qoofautin v. Robcerts, in 1875, scrip, to bearer for 
 
 Russian government bonds was held to be negotiable, 
 and where the broker in possession of the scrip improperly 
 pledged it with his own bankers, it was held that they got 
 a good title. The Courts of Exchequer and Exchequer 
 Chamber based their decisions on the ground of mercantile 
 usage. The House of Lords accepted this ground, but 
 further affirmed the Courts below on the ground that 
 the form of the instrument created an estoppel (u). In 
 1877, on similar facts, scrip certificates to bearer for 
 shares in an English Joint Stock Company (the Anglo- 
 Egyptian Banking Company, Limited), were held to be 
 negotiable (v) . 
 
 The non-liability of the English agents who signed the 
 foreign scrip was clearly pointed out (a;). 
 Share oertifi- Share certificates and transfers are not negotiable 
 transfers, instruments . In Swan v . North British- Austratasidh Co., 
 in 1863 (where the distinction between share transfers 
 and negotiable instruments is clearly pointed out by 
 Byles, J.), the plaintiff wishing to sell some shares in a 
 company, executed a transfer form in blank. His broker 
 fraudulently filled up the transfer with the description of 
 
 (t) Fine Art Society v. Union Bank (1886), 17 Q. B. D. 705, C. A., 
 see at p. 713; and of. McBntire v. Potter $ Co. (1889), 22 Q. B. D. 
 at p. 442; and Paget on Banking,, ed. 2, p. 66. 
 
 («) Goodwin-y. Robarts (1875), L. R. 10 Ex. 76, and in Ex. Ch. 
 337; affirmed by H. L. 1 App. Gas. 476. See the last ground criti- 
 cised, Colonial Bank v. Cady (1890), 15 App. Cas. 267, at p. 282. 
 
 (v) Rumball v. Metropolitan Bank (1877), 1 Q. B. D. 194. 
 
 (*) Goodwin v. Robarts (1875), L. B. 10 Ex. 337, at p. 344. See, 
 too, cases cited, ante, p. 364, as to foreign bonds. 
 
Negotiable Securities for Money. 377 
 
 shares in another company and sold them to a bond fide Share oertifi- 
 purchaser. Held, that the sale was ineffectual, and that transfer^, 
 tho plaintiff was entitled to have his name restored to the 
 list of shareholders («/) . 
 
 In France v. Clark, in 1884, the holder of shares in a 
 company deposited the certificates with C. as security for 
 150Z., and executed a transfer with the transferee's name 
 in blank. C. deposited the certificates and transfer as 
 security for 250Z. with D. After C.'s death, D. filled in 
 his own name as transferee. Held that D. had no title 
 to the shares beyond a claim for the 150?. advanced by 
 C, and that the same principle would have applied even 
 if tho shares had been negotiable instruments (z) . 
 
 In London County Bank v. River Plate Bank, in 1887, 
 share certificates of the Pennsylvania Railway with blank 
 transfer forms indorsed on the back, were stolen by a bank 
 manager and pledged with the plaintiffs for his private 
 account. He afterwards obtained them back from the 
 plaintiffs by fraud and restored them to his own bank. It 
 was shown that these shares were treated as negotiable 
 by delivery in the English market. Held that they were 
 not negotiable instruments, and that the pledgees (plain- 
 tiffs) had no title to them (a) . 
 
 In Sheffield v. London Joint Stock Bank, in 1888, 
 ante, p. 366, share certificates, and .other securities, some 
 of which were clearly negotiable, were pledged with a 
 money dealer and afterwards deposited by him' with his 
 bankers to secure a running account. The case turned 
 oh the point that the bankers knew that the securities were 
 
 (y) Swan v. North British Australasian Co. (1863), 32 L. J. Ex. 
 273, at p. 278, Ex. Ch.; cf. Societe Generate de Paris v. Walker 
 (1885), 11 App. Cas. 20. As to the liability of the company certifying 
 the transfer to the transferee, see Bishop v. Balkis Co. (1890), 25 
 •Q. B. D. 512, C. A. 
 
 (z) France v. Clark (1884), 20 Ch. D. 257, C. A. 
 
 (a) London and County Bank v. London and River Plate Bank 
 {1887), 20 Q. B. D. 232. The case was appealed on another point as 
 to negotiable bonds, and affirmed, 21 Q. B. D. 535, C. A.; cf. Lloyds 
 Bank v. Swiss Bankverein (1912), 17 Com. Oas. at p. 297, per 
 Hamilton, J. 
 
3,78 Bills of Exchange. 
 
 Share certifi- not the money dealer's own and is therefore not in point 
 oates and l 
 
 transfers. here. 
 
 In Williams v. Colonial Bank, in 1888, the executors 
 of a shareholder in a New York railway executed blank 
 transfers Tvhich were indorsed on the back of the share 
 certificates, and handed them to a broker for sale. The 
 broker fraudulently pledged them with the bank for 
 advances to himself. Held, that the executors were 
 entitled to have the certificates back from the bank. 
 "It is admitted," said Bowen, L.J., "that the cer- 
 tificates are not negotiable instruments according to 
 English law. . The broad' principle is that, except 
 
 in the case of a sale in market overt, a person does not 
 acquire a title to a personal chattel from anybody except 
 the true owner " ; and, dealing with the question of 
 estoppel, he points out that it must consist in some ex- 
 press or implied representation, and that in this case there 
 was nothing on the face of the documents to suggest 
 that the " bearer " would become entitled to the shares (6). 
 The decision was affirmed in 1890 by the House of Lords 
 under the name of Colonial Bank v. Cady, when it was 
 held that as the dealings with the certificates took place 
 in England, the rights in respect of such dealings must 
 be determined by English law, and that the conduct of 
 the executors in delivering the certificates to their broker, 
 with the transferee's name in blank, did not preclude them 
 from setting up their title against the bank. After dis- 
 tinguishing the case of negotiable instruments, Lo.rd 
 Herschell says: " The question, what is necessary or 
 effectual to transfer the shares in such a company, or to- 
 perfect the title to them, where there is or must be held 
 to have been an intention to transfer them, must be 
 answered by reference to the law of the State of New 
 York. But the rights arising out of a transaction 
 
 (6) Williams v. Colonial Bank (1888), 38 Gh. D. 388, at p. 408,. 
 C. A. 
 
Negotiable Securities for Money. 379 
 
 entered into by parties in this country, whether, for Share certifi- 
 example, it operated to effect a binding sale or pledge transfer, 
 as against the owner of the shares, must be determined by 
 the law prevailing here" (c); In Fry v. Smellie (d), in 
 1912, the holder of shares in a company handed to an agent 
 the share certificates and a transfer signed in blank, in- 
 structing him to borrow thereon a specified sum of money . 
 The agent, contrary to his instructions, borrowed a less 
 sum of money. Held that the lender could retain the 
 documents until repayment of the sum he had lent. 
 
 In Fuller v. Glyn Mills & Co., in 1914 (e), the plain- 
 tiff bought shares which he left with his stockbrokers, and 
 which with his knowledge were put into the names of two 
 nominees of his brokers. The brokers pledged these shares 
 with their bankers. Held that the bankers had a good title 
 as pledgees, there being nothing to put them on inquiry 
 as to the brokers' right to deal with them. 
 
 Treasury bills owe their origin to the Treasury Bills Treasury- 
 Act, 1877 (40 & 41 Vict. c. 2), and they are regulated by biUs - 
 that Act as amended by sect. 5 of the National Debt Act, 
 1889 (52 & 53 Vict. c. 6), and by regulations made by the 
 Treasury. The regulations now in force are those of the 
 31st of May, 1889 (see Stat. Rules and Orders, revised, 
 vol. 10). Treasury bills constitute part of the unfunded or 
 floating debt of the country, and are dealt with as ordinary 
 commercial bills. The Treasury advertise for tenders, and 
 the bills are issued as three or six months bills at the best 
 price that can be obtained for them. See also Exchequer 
 Bills, ante, p. 374. 
 
 . The issue of Treasury "currency notes for 11. and 10s. Treasury- 
 is authorised and regulated by the Currency and Bank °™- ren °y 
 Notes Act, 1914 (4 & 5 Geo. 5, c. 14), as amended by the 
 Currency and Bank Notes (Amendment) Act, 1914 (4 & 
 
 (c) Colonial Bank v. Cady (1890), 15 App. Cas. 267, at p. 283. 
 
 (d) Fry v. Smellie, (1912) 3 K. B. 282, C. A. 
 
 (e) Fuller v. Glyn Mills § Co., (1914) 2 K. B. 168. 
 
380 
 
 Bills op Exchange. 
 
 Warranty 
 of title and 
 genuineness. 
 
 5 Geo. 5, c. 72). They are bearer notes issued by the 
 Treasury, and are legal tender throughout the United 
 Kingdom. 
 
 In the case of a bill or note payable to bearer the 
 obligations of the transferor as regards its genuineness 
 and his right to transfer are defined by sect. 58 (3) of 
 the Act, ante. In the case of other negotiable securi- 
 ties, the precise extent of the transferor's liabilities is 
 not very clear. It seems that, as in the case of a sale of 
 goods, the seller warrants his right to sell (/), but it is 
 doubtful whether the buyer is only entitled to a return of 
 his money if the seller have no title, or whether he can 
 sue for damages beyond. 
 
 Where the buyer had bought forged scrip which the 
 seller had sold in good faith, it was held that he was 
 only entitled, to a return of the money he had paid (g). 
 Where shares are sold and the buyer refuses to accept and 
 pay for them the measure of damages is the best obtainable 
 market price at the date of breach (h) . 
 
 (/) Raphael v. Burt (1884), 1 C. & E. 325 (United States "called 
 bonds"); cf. Meyer v. Richards (1895), 163 United States Kep: 
 385, at p. 405. 
 
 (g) Westropp v. Solomon (1849), 8 C. B. 345, see at p. 373; cf. 
 Young v. Cole (1837), 3 Bing. N. O r 724 (Guatemala bonds); Lamert 
 v. Heath (1846), 15 M. & W. 486 (railway scrip); Gompertz v. 
 Bartlett (1853), 2 E. & B. 849 (foreign bill); Gurney v. Womersley 
 (1854), 4 E. & B. 133, at p. 141 (bill with forged acceptance). 
 
 (K) Jamal v. Moolla Dawood, (1916) A. C. 175, P. C. 
 
APPENDIX I. 
 
 FORMS. 
 
 No. 1. — Inland Bill of Exchange. 
 
 £100 
 
 London, 1st January, 1887. 
 Three months after date pay to our. order the sum of 
 one hundred pounds for value received. 
 
 Andrews & Co. 
 To Messrs. Brown & Sons, Liverpool. 
 
 381 
 
 No. 2. — Foreign Bill of Exchange. 
 
 No. 025. Exchange for £100. 
 
 Calcutta, 1st January, 1882. 
 Six months after sight of this first of Exchange 
 (second and third unpaid), pay to the order of Mr. John 
 Charles one hundred pounds, for value received, and 
 charge the same to account of Messrs. Smith & Co.. 
 against your letter of credit, No. 21. 
 
 James Andrews. 
 To Mr. J. Brown, London. 
 
 No. 3. — Foreign Bill of Exchange, 
 
 No. 015. 
 
 London, 1st February, 1882. For Es. 550—8—0,. 
 
 At sixty days after sight of this first of Exchange 
 (second and third unpaid), pay, to the order of Messrs. 
 Charles & Co. five hundred and fifty, rupees, eight 
 annas, which place to account shipment of copper per 
 " Swallow." 
 
 Value received. Andrews & Co. 
 
 To Messrs. Brown & Sons, Calcutta. 
 
382 
 
 Appendix I. 
 
 No. 4. — Promissory Note. 
 
 £100 
 
 London, let January, 1882. 
 On demand I promise to pay to Mr. John Charles or 
 order one hundred pounds, with interest at five per oent. 
 per annum until payment, for value received. 
 
 John Brown. 
 
 No. 5. — French Bill (a). 
 
 Paris, le l er Mai, 1887. B. P. 1,000 fr. 
 
 A deux mods devue il vous plaira payer par oette seule 
 de change a l'ordre de M. Charles la somme de mille 
 francs, valeur ©n marchandises {ou en compte, ou en 
 argent, &c), sans autre avis de 
 
 Votre serviteur, 
 A Messieurs V. Bonner & Cie. Dufour. 
 
 Au Havre. 
 
 Due 
 
 No. 6. — Treasury Bill. 
 (Per Acts 40 Vict. c. 2, and 52 Vict. c. 6.) 
 
 A. 0000.1. 
 
 ' A. 0000.1. 
 
 i London 
 
 This Treasury hill entitles (6) or order to pay- 
 
 ment of pounds at the Bank of England out of the 
 
 Consolidated Fund of the United Kingdom on the 
 
 Secretary to His Majesty's Treasury. 
 
 No. 7 (c). — Notice of Dishonour [or Protest] to Drawer. 
 
 [Date and address.] 
 , Take notice that a hill, for £ drawn by you under 
 
 date the on and payable at , has been 
 
 I (a) See Bravard-Demangeat, 7th ed. p. 276. 
 j(6) If this blank be not filled in the bill will be paid to bearer, 
 (c) This and the two following forma are those given in the schedule 
 to the Bills of Exchange Bill, 1881. They were - omitted in the Act. 
 
Forms. 383: 
 
 dishonoured by non-payment* [or non-acceptance], and that 
 you are held responsible therefor. 
 
 (Signed) J. S. 
 
 * N.B. — In the case of a foreign bill add " and protested," il it 
 has been noted or protested. 
 
 No. 8. — Notice of Dishonour [or Protest] to Indorser. 
 
 [Date arid address."] 
 Take notice that a bill, for £ drawn by 
 
 under date the on and payable at , and 
 
 which bears your indorsement, has been dishonoured by 
 non-acceptance [or non-payment],* and that you are held 
 responsible therefor. 
 
 (Signed) J ; S. 
 
 * N.B. — In the case of a foreign bill add " and protested," if it 
 has been noted or protested. 
 
 No. 9.- — Notice to Drawer of Partial Acceptance. 
 
 ' [Date and address.] 
 
 Take notice that a bill, for £ drawn by you 
 
 under date the on , has been accepted by him 
 
 for £ only, and that you are held responsible for the 
 
 balance and expenses. 
 
 (Signed) J. S. 
 
 No. 10. — English Protest for Non-Acceptancf,. 
 
 On the day of one thousand eight hundred and 
 
 eighty , I [James Brown], public notary, by lawful 
 
 authority and sworn, dwelling in in the county of 
 
 in the United Kingdom of Great Britain and Ireland, 
 at the request of C. D. of [or of the holder] did exhibit 
 
 the original bill of exchange, whereof a true copy is on the 
 other side written, unto E. F. at his counting-house [or unto 
 a clerk in the counting-house of E. F.], the person upon 
 whom the same is drawn, and demanded acceptance thereof, 
 and he answered [that it would not be accepted at present, 
 or as the case may be]. 
 
38 4 Appendix I. 
 
 Wherefore I, the said notary, at the request aforesaid, did 
 and do by these presents protest against the drawer of the 
 said bill and all other parties thereto, and all others con- 
 cerned, for all costs of exchange, re-exchange, and all costs, 
 damages, and interest, present and to come, for want of 
 acceptance of the said bill. Thus protested in the presence 
 of W. S. and T. E., witnesses. 
 S X "Which I attest, 
 
 ( SEAL. ) jAMES BBOWN, 
 
 Notary public of (d). 
 
 v_y 
 
 No. 11. — Act of Honour. 
 On the day of , one thousand eight hundred 
 
 and eighty , I [James Brown], notary public, duly 
 
 admitted and sworn, dwelling in [Liverpool] in the county 
 of , in the United Kingdom of Great Britain and 
 
 Ireland, do hereby certify that the original bill of exchange 
 for pounds, of which a copy is on the other side 
 
 written (and protested for non-payment) was this day ex- 
 hibited unto C. D. of [Liverpool], one of the. firm of [Smith 
 & Co.], who declared before me that the said firm would pay 
 the amount of the said bill for the honour of [James & Co.], 
 the indorsers, holding the drawers and all prior indorsers, 
 and all other proper persons, responsible to them the said 
 [Smith & Co.] for the said sum, and for all interest, damages, 
 and expenses. I have therefore granted this notarial act of 
 honour accordingly. 
 
 ©Which I attest, 
 James Brown, 
 Notary public of Liverpool. 
 
 No. 12. — French Protest for Non- Acceptance. 
 L'an le a la requete du sieur negotiant 
 
 patente, demeurant a disant domicile en ma demeure. 
 
 J'ai soussigne, somme et interpelle le sieur N. au 
 
 (d) See Broohs' Notary, ed. 5, pp. 214, 222; and Chitty's Commer- 
 cial Law, vol. 4, p. 344. 
 
Forms. _ 385 
 
 ■domicile indique au titre ci-dessus transcrit a rue 
 
 ou etant j'ai parle a de presentement accepter, 
 
 pour payer a l'echeanoe, la lettre de change ci-dessus trans- 
 crite, de la somme de lui declarant qu'a defaut je pro- 
 
 testais toutes pertes, depens, dommages et interets du renvoi 
 de la-dite lettre de change, a qui de droit, change, rechange et 
 autres frais, aux risques, perils et fortune de qui il appar- 
 tiendra. Lequel a repondu que (reponse) et a signe (signa- 
 ture) [ou soinrne de signer sa reponse, a refuse]. Laquelle 
 reponse j'ai pris pour refus d'acoeptation et j,'ai reitere les 
 protestations ci-dessus faites sous toutes reserves. 
 
 Le tout fait en presence et assiste de J. B., demeurant a 
 L — et de T. S., demeurant a M — temoins frangais, majeurs, 
 lesquels ont avec moi signe le present (e), dont acte, duquel 
 j'ai, au dit domicile, et parlant comme dessus, laisse au 
 susnomme copie, ainsi que de la dite lettre de change. Le 
 cout est de 
 
 [Signatures. ,]' 
 
 (e) JRravard-Demangeat, 7th ed. p. 248. The witnesses, though 
 usual, are not necessary. 
 
 25 
 
386 
 
 APPENDIX II. 
 
 How bills, 
 
 notes, and 
 cheques are 
 to be taken 
 in execution . 
 
 STATUSES. 
 
 THE JUDGMENTS AC*, 1838. 
 
 (1 & 2 Vict. c. 110.) 
 
 See. 12.— That by virtue of any writ of fieri facias to be 
 sued out of any superior or inferior Court after the time 
 appointed for the commencement of this Act, Or airy precept 
 in pursuance theareof, the sheriff or other officer having the 
 execution thereof may and shall seize and take any mohey 
 or bank notes (whether of the Governor and Company of the 
 Bank of England, or of any other bank or bankers), and any 
 cheques, bills of exchange, promissory notes, bonds, specialties, 
 or other securities for money, belonging to the person against 
 whose effects such writ of fieri facias shall be sued out; and 
 may and shall pay or deliver to the party suing out such 
 execution any money or bank notes which shall be so seized 
 or a sufficient part thereof; and may and shall hold any such 
 cheques, bills of exchange, promissory notes, bonds, special- 
 ties, or other securities for money, as a security or securities 
 for the amount by such writ of fieri facias directed to be 
 levied, or so much thereof as shall not have been otherwise 
 levied and raised; and may sue in the name of such sheriff or 
 other officer for the recovery of the sum or sums secured 
 thereby, if and when the time of payment thereof shall have 
 arrived: and that the payment to such sheriff or other officer 
 by the party liable on any such cheque, bill of exchange, 
 promissory note, bond, specialty, or other security, with or 
 without suit, or the recovery and levying execution against 
 the party so liable, shall discharge him to the extent of such 
 payment, or of such recovery and levy in execution, as the 
 case may be, from his liability on any such cheque, bill of 
 exchange, promissory note, bond, specialty, or other security; 
 
Statutes. 387 
 
 and such sheriff or other officer may and shall pay over to l & 2 Vict, 
 the party suing out such writ the money so to be recovered, °' 1 10- 
 or such part thereof as shall be sufficient to discharge the 
 amount by such writ directed to be levied: and' if, after 
 satisfaction of the 'amount so to be levied, together with 
 sheriff's poundage and expenses, any surplus shall remain in 
 the hands of such sheriff or other officer, the same shall be 
 paid to the party against whom such writ shall be so issued: 
 Provided that no such sheriff or other officer shall be bound 
 to sue any party liable upon any such cheque, bill of ex- 
 change, promissory note, bond, specialty, or other security, 
 unless the party suing out such execution shall enter into a 
 bond, with two sufficient sureties, for indemnifying him from 
 all costs and expenses to be incurred in the prosecution of 
 such action, or to which he may become liable in conse- 
 quence thereof, the expense of such bond to be deducted out 
 of any money to be recovered in such action. 
 
 Note. — See note to sect. 38 of the Bills of Exchange Act, ante. 
 
 STAMP ACT, 1853. 
 
 (16 & 17 Vict. c. 59.) 
 
 Sec. 19. — Provided always, that any draft or order drawn Paj-mentby 
 upon a banker for a sum of money payable to order on J^ !£ e £ r ° f r , 
 demand which shall, when presented for payment, purport to held under 
 be indorsed by the person to whom the same shall be drawn J"* ln T 
 payable, shall be a sufficient authority to such banker to pay 
 the amount of such draft or order to the bearer thereof; and 
 it shall not be incumbent on such banker to prove that such 
 indorsement, or any subsequent indorsement, was made by 
 or under the direction or authority of the person to whom 
 the said draft or order was or is made payable either by 
 the drawer or any indorser thereof. 
 
 Note. — The remaining sections of this Act, which related, to 
 stamps, have long been repealed. The provisions of this section, 
 in so far as they relate to bills payable on demand, are reproduced 
 by sect. 60 of the Bills of Exchange Act, ante, p. 239; but it was 
 not included in the schedule of repeals, because it was thought it 
 might apply to drafts or orders other than bills; and it has 
 recently been held that it applies to drafts drawn by one branch 
 
 25 (2) 
 
388 Appendix II. 
 
 16 & 17 Vict, bank on another (a). For the decisions on it, see notes to 
 o. 59.. sect. 60, ante, p. 240. It has no apparent connection with 
 
 ■ sect. 18, the section which preceded it, and which related to 
 
 spoiled stamps. The section, says Lord Lindley, " was inserted 
 at the instance of Lord Overstone, when cheques to order on 
 demand bearing penny stamps were first introduced. He saw 
 that these would become common, and would expose bankers to, 
 serious risks from forged indorsements, and the section was 
 inserted for their protection. The Act except sect. 19 has been 
 repealed, and in 1872 it was made applicable to documents issued 
 by the Paymaster-General in pursuance o? the Chancery Funds 
 Act (35 & 36 Vict. c. 44, s. 11)." It is perhaps doubtful how 
 far the section applies to foreign drafts, e.g., a draft drawn by a 
 branch office abroad on the head oflice in England (6). 
 
 THE COMMON LAW PKOCEDTJEE ACT, 1854. 
 (17 & 18 Vict. c. 125.) 
 Lost nego- Sec. 87. — In case of any action founded upon a bill of 
 
 meets. exchange or other negotiable instrument, it shall be lawful 
 
 for the Court or a judge to order that the loss of such in- 
 strument shall not be set up, provided an indemnity is given 
 to the satisfaction of the Court, or -a judge, or a master, 
 against the claims of any other person upon such negotiable 
 instrument. 
 
 Note. — In so far as this section relates to bills and notes, it is 
 reproduced and extended by sect. 70 of the Bills of Exchange 
 Act, ante, p. 267. It was not repsaled because it applies to all 
 negotiable instruments, and not merely to bills and notes. 
 
 THE BANK HOLIDAYS ACT, 1871. 
 
 (34 & 35 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. 
 
 Whereas it is expedient to make provision for rendering the 
 day after Christmas Day, and also certain other days, bank 
 
 (a) Capital and Counties Bank >'. Gordon, (1903) A. C. 240, 251, 
 per Lord Lindley, H. L. 
 (6) Ibid. 
 
Statutes. 389 
 
 holidays, and for enabling bank holidays 'to be appointed by M & 35 Viot. 
 royal proclamation: — - — 
 
 Be it enacted, &c: 
 
 See. 1 . — The several days in the schedule to this Act men- Bills due on 
 
 tioned (and which days are in this Act hereinafter referred bank holidays 
 
 to be payable 
 to as bank holidays) shall be kept as close holidays in pll onthefollow- 
 
 banks in. England and Ireland and Scotland respectively, and in S da y- 
 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 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 Provision as 
 of an unpaid bill of exchange or promissory note should be *° notice of 
 given, or when the day on which a bill of exchange or pro- presentation 
 missory note should be presented or received for acceptance, for honour, 
 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 pay- As to any 
 ment or to do any act upon such bank holidays which he payments 
 would not be compellable to do ot make on Christmas Day holidays, 
 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 following 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 Appointment 
 time, as to her Majesty may seem fit, by proclamation, in the ° f ^E 6 ? 1 ^ 
 manner in which solemn fasts or days of public thanksgiving by royal pro- 
 may be appointed, to appoint a special day to be observed as olalna tion. 
 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 
 
390 
 
 Appendix II. 
 
 34 & 35 Vict. 
 o.l7. 
 
 Day ap- 
 pointed for 
 bank holiday 
 may be 
 altered by 
 Order jji 
 Council. 
 
 Exercise of 
 powers con- 
 ferred by 
 sects. 4 ifc 5 
 in Ireland 
 by Lord 
 Lieutenant. 
 Short title. 
 
 proclamation, and shall, as regards bills of exchange and 
 promissory notes payable in such locality, be deemed to be a 
 bank holiday for all the purposes of this Act. 
 
 Note.—S&s the proclamation of 24th March, 1902, appointing; 
 the 26th and 27th of June as general bank holidays for the pur- 
 pose of the Boyal Coronation, and for a proclamation appointing 
 a localized bank holiday, see the proclamation of 20th October, 
 1902, appointing the 2§th October as a bank holiday throughout 
 the county of London for the purpose of the Koyal progress to 
 the Oity. And see the proclamation of 22nd March, 1911, 
 " appointing Thursday, June 22nd, and Friday, June 23r.d, hanji 
 holidays and public holidays throughout the United Kingdom 
 and in the County of London respectively," to celebrate the* 
 King's coronation and progress through London. 
 
 Sec. ^5. — It shall be lawful for her Majesty in like manner, 
 from time to time, when it is toade to appear to her Majesty 
 in Council in any special ease that in any year it is inexpe- 
 dient that a day by this Act appointed for a bank holiday 
 should be a bank holiday, to declare that such day shall not 
 in such year 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. 
 
 See. 6. — {Superseded, and repealed by sect. 3 of the Holi- 
 days Extension Act, 1375 (38 & 39 Viet. c. 13).] 
 
 Sec. 7. — This Act may be cited for all purposes as "The 
 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. 
 
 Bmt/k Hiolidays in Scotland. 
 
 New Year's Day. 
 Christmas Day. 
 
 If either of the above days falls on a Sunday the next 
 .following Monday shall be a bank holiday. 
 
Statutes. 3*U 
 
 Grood Friday. 3t & 3o Vict. 
 
 The first Monday of May. c - 17 - 
 
 The first Monday of August. 
 
 Note. — For the history of this legislation, see an article in the 
 Journal of the Institute of Bankers,' vol': 22, p. 205 (May, 1901). 
 This Act is amended and exiteAded fcy -the Holidays Extension 
 Apt, 1875 ,(38 & 39 Vict. ,c. J3, get ,out below), and by the IJank 
 Holidays (Ireland) Act, 1903 (3 ^dw.'7/c. l), which provides 
 for making St. Patrick's Day a 'bank holiday in Ireland (see 
 post, p. 393). As r ( ega,pds bills and noftes it must be read with 
 and subject to sect. 14 of the Bills ojf Exchange Act, ante, 
 p. 39. 
 
 HOLIDAYS EXTENSION ACT, 1875. 
 (38 & 39 Vict. c. 13.) 
 Whereas it is expedient tp amend " The IJank Holidays 34 & 3.5 yic£. 
 Act, 1871 " (in this Act referred to as the Holidays Act of °- 17 - 
 1871), and to extend certain of the holidays named therein 
 to the customs, bonding w ; arehouses, 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 Ac£, the Daysmen- 
 several days and each and every of them in the schedule to tl 9 I "l (i , in 
 ' ^ " r ' .... schedule to 
 
 t^his Act mentioned; beipg holidays under the Heydays Act be holgayj. 
 
 .of 1871, sha$l be kept as public holidays in the custom^, 
 
 inland revenue offices, and bonding warehouses in England 
 
 and Ireland respectively ; and it shall be lawful for the directors 
 
 or governing Ijody (by whatever name known) of any dqejk 
 
 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 emulating 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 notioe to the same effect 
 
 for at least a we^k immediately preceding any day which 
 
 it is intended to observe as a holiday under this Act; and 
 
392 
 
 Appendix II. 
 
 38 & 39 Vict, 
 o. 13. 
 
 26th Decem- 
 ber falling 
 on Sunday. 
 
 34 & 35 Vict. 
 «. 17. 
 
 Exercise of 
 powers by 
 Lord Lien- 
 tenant of 
 Ireland. 
 
 Short title. 
 
 the anniversary of the coronation 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 sec- 
 tions 4 and 5 of the Holidays Act of 1871, may be exercised 
 in Ireland as far as relates to that part of the United King- 
 dom, by the Lord Lieutenant in Council, and section 6 of 
 that Act is hereby repealed; and those powers of her Majesty 
 and of the Lord Lieutenant in Council shall extend to holi- 
 days under this Act. 
 
 Sec. 4. — This Act miay be cited for all purposes as " The 
 Holidays Extension Act, 1875." 
 
 Schedule. 
 Easter Monday. 
 Monday in Whitsun week. 
 The first Monday in August. 
 The 26th of December (if a week day). 
 
 St. Patrick's Note. — The provisions of this Act and of the Act of 1871 are 
 Day in further extended by the Bank Holiday (Ireland) Act, 1903 (3 
 
 Ireland. Edw. 7, c. 1), which makes St. Patrick's Day a bank holiday in 
 
 Ireland, and provides as follows: — 
 
 Sec. 1. — The provisions of the Bank Holidays Act, 1871, and 
 the Holidays Extension Act, 1875, so far as they relate tq Ireland,) 
 are extended to the seventeenth day of every March when a week 
 day, and, if a Sunday, to the next day following, and this day 
 shall be a bank holiday in Ireland within the meaning of these 
 Acts. 
 
 Extension of 
 45 & 46 Vict. 
 c. 61, as. 76 
 to 82, and 
 24 & 25 Vict. 
 v. 98, B . 25, to 
 
 THE REVENUE ACT, 1883. 
 
 (46 & 47 Vict. c. 55.) 
 
 Sec. 17. — Sections seventy-six to eighty-two, both inclu- 
 sive, of the Bills of Exchange Act, 1882, [and section twenty- 
 five of the Forgery Act, 1861,] shall extend to any document 
 issued by a customer of any banker, and intended 1 to enable 
 
Statutes. 393 
 
 -any person, or body corporate to obtain payment from such oertain drafts 
 banker of the sum mentioned in such document, and shall so on baDkers - 
 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 Remembrancer 
 in Scotland shall be deemed to be bankers, and the public 
 ■officers drawing on them shall be deemed customers. 
 
 Note. — See ante, p. 296, as to crossed cheques, and Capital and 
 Counties Bank v. 'Gordon, (1903) A. O..240, at pp. 250, 251, H. L. 
 
 Sect. 25 of the Forgery Act, 1861, is now reproduced in 
 sect. 1 (3) of the Forgery Act, 1913 (3 & 4 Geo. 5, c. 27). 
 
 SUPREME COURT OF JUDICATURE ACT, 1884. 
 
 (47 & 48 Vict. c. 61.) 
 
 Sec. 14. — Where any person neglects or refuses to comply Execution or 
 ~with a judgment or order, directing him to execute any indorsement 
 
 . , , , n " , - . . , of instrument 
 
 ■conveyance, contract, or other document, or to indorse any ^ y or( j er of 
 negotiable instrument, the Court may, on such terms and Court, 
 •conditions (if any) as may be just, order that such convey- 
 ance, 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 all purposes 
 available as if it had been executed or indorsed by the person 
 •originally directed to execute or indorse it. 
 
 Note. — See Annual Practice. 
 
 THE COUNTY COURTS ACT, 1888. 
 (51 & 52 Vict. c. 43.) 
 
 Sec. 147. — Every bailiff or officer executing any process of What goods 
 
 execution issuing out of the Court against the goods and ma y he taken 
 
 ,i • -i ln execution, 
 
 ^chattels of any person may by virtue thereot seize and take 
 
 .any of the goods and chattels of such person (excepting the 
 
394 
 
 Appendix II. 
 
 51 & 62 Vict, 
 c. 43. 
 
 Securities 
 seized to be 
 held by high 
 bailiff. 
 
 wearing apparel and bedding of such person or his family,, 
 and the took and implements of his trade, 1 to the value off 
 £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 securities 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 secu- 
 rities for money which shall have been seized or taken under 
 the last preceding section, as a security for the amount 
 directed to be levied by such execution, or so much thereof 
 as shall not have been otherwise levied or raised, for the 
 benefit of the plaintiff; and the plaintiff may sue in the name 
 of the defendant, or in the name of any person in whose 
 name the defendant 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. 
 
 Note. — See County Courts Annual Practice. 
 
 All duties 
 to be paid 
 according to 
 regulations 
 of Act. 
 
 STAMP ACT, 1891. 
 
 (54 & 55 Vict. c. 39.) 
 
 Sec. 2. — All stamp duties for the time being chargeable- 
 by law upon any instruments 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. 
 
 Note. — A stamp .objection may be pjeadfid, see e.g., Oetlinger 
 v. Cohen, (1918) 1 K. B. 582. But it is not usual to do so, 
 because when the instrument is tendered in evidence the officer 
 of the Court raises the objection. 
 
 Facts and Sec. 5 . — All the facts arid circumstances affecting the lia- 
 
 affectTn^dut 8 bilit y of any instrument to dut y> ° r the amount of the dutjr 
 with which any instrument is chargeable, are to be fully; 
 
Statutes. 395 
 
 and truly set forth in the instrument; and every person who 54 & 55 Vict, 
 with intent to defraud her Majesty — c - 39- 
 
 (a) Executes any instrument in which all the said facts *° **j s,t 
 and circumstances are not fully and truly set forth ; or instruments. 
 
 (b) Being employed or concerned in or about the prepara- [Aot of 1870, 
 tion of any instrument, neglects or omits fully and ' ' J 
 truly to set forth therein all the said facts and cir- 
 cumstances, 
 
 shall incur a fine of £10. 
 
 Note. — A post-dated cheque is valid (c), but it is conceived 
 that the person who issues it may possibly incur a penalty under 
 this section. 
 
 Sec. 6. — (1.) When an instrument is chargeable with ad Mode of 
 valorem duty in respect of (a) any money in any foreign or ^d TOlorera 
 colonial currency, or (b) any stock or marketable security, duty in 
 duty shall be calculated on the value on the day of the date certain taees. 
 of the instrument, of the money in British currency according 1870, s. 11.] 
 to the current rate of exchange, or of the stock or security 
 according to the average price thereof. 
 
 Note. — This section is amended >by sect. 12 of the Finance 
 Act, 1899 (62 & 63 Vict. c. 9),, as regards instruments "other 
 than a bill of exchange or promissory note." It therefore stands 
 as regards bills and notes. 
 
 (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 s ; tatement, 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 sect. 72 (4), ante, 
 p. 281. 
 
 Sec. 8. — (1.) An instrument, the duty upon which is re- General 
 quired or permitted by law to be denoted by an adhesive directions 
 
 jis to the 
 
 (c) Gatty v. Fry (1877), 2 Ex. D. 265; Royal Bank of Scotland 
 v. Tottenham, (1894) 2 Q. B. 715, C. A. 
 
396 
 
 Appendix II. 
 
 54 & 55 Vict, 
 o. 39. 
 
 cancellation 
 of adhesive 
 
 [Act of 1870, 
 8. 24.] 
 
 stamp, is not to be deemed duly stamped (d) with an adhesive 
 stamp unless the person required by law to cancel the ad- 
 hesive, stamp cancels the same by writing on or across the 
 stamp his name or initials, or the name or initials of his firm, 
 together 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 incur a fine of £10. 
 
 Note. — The provisoes to sect. 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 (e). 
 
 Meaning of 
 " banker" 
 and " bank 
 note." 
 [Cf. Act. of 
 1870, s. 45.] 
 
 Bank Notes, Bills of Exchange,' and Promissory Notes. 
 
 Sec. 29. — For the purposes of this Act, the expression 
 " banker " means any person carrying on the business of 
 banking in the United Kingdom, and the expression " bank 
 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 hot 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 exceeding one hundred pounds on demand, 
 
 00 Cf. Marc v. Rouy (1874), 31 L. T. N. S. 372. 
 («) Fiale v. Michael (1874), 30 L. T. N. S. 453. 
 
Statutes. ^97 
 
 whether the same be so expressed or not and in what- 54 & 55 Viot. 
 ever form, and by whomsoever the bill or note is c- • 
 
 drawn or made. 
 
 Sec. 30. — A bank note issued duly stamped, or issued un- Banknotes 
 stamped by a banker duly licensed or otherwise authorized to ^% su ^j 
 issue unstamped bank notes, may be from time to time [Act of 1870, 
 re-issued without being liable to any stamp duty by reason s - * 6 -] 
 of the re-issuing. 
 
 Sec. 31. — (1.) If any banker, not being duly licensed or Penalties for 
 otherwise authorized to issue unstamped bank notes, issues, or ^,™\^i~ r ail 
 permits to be issued, any bank note not being duly stamped, unstamped 
 he shall incur a fine of £50. banknote. 
 
 [Ant of 1870, 
 
 (2.) If any person receives or takes in payment or as a s. 47. 
 security any bank note issued unstamped contrary to law, 
 knowing the same to have been so issued, he shall incur a 
 fine of £20. 
 
 See. 32. — For the purposes of this Act the expression Meaning of 
 "bill of exchange" includes draft, order, cheque, and letter "bill of ^ 
 of credit, and any document or writing (except a bank note) rCf . t \ 
 entitling or purporting to entitle any person, whether named 1870, e. 48.] 
 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 — Bill on 
 
 (a) An order for the payment of any sum of money by a 
 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 
 contingency 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. 
 
 demand. 
 
398 Appendix II. 
 
 54 & 55 Vict. Note.— A reference to sect. 3 of the Bills of Exchange Act, 
 c 39. ante, p. 9, shows that many documents require to be stamped as 
 Mis of exchange -which have none of the other incidents of bills, 
 and which are clearly not negotiable instruments (/) . A transfer 
 order by a bank on the Bank of England in favour of the 
 Oflstoms is a bill payable on demand {g). Compare the definition 
 qf " bill payable on demand " given by sect. 10 of the Bills of 
 Exchange Act, ante, p. 33, and note that for stamp purposes 
 bills of exchange payable not more than three days after Sight 
 or date are pfit on the footing of demand bills, see sect. 10 of 
 the Finance Act, 1899, post, p. 408. 
 
 Stamp duties were first imposed on bills and notes by an Act 
 of 1*781, the 22 &ed. 3, c. 33. It applied only to inland instru- 
 ments. 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. 
 
 "promissory ® ec ' 33 ' — (*") ^ or *^ e P ur P oses °f th* 8 Act the expression 
 note." " promissory note " includes any document or writing (except 
 
 [Act of 1870, a bank note) containing a promise to pay any sum of money. 
 
 (2.) A note promising the payment of any sum of money 
 out of any particular fund which may or may not be avail- 
 able, or upon any condition or contingency which may or 
 may not be performed or happen, is to be deemed a pro- 
 missory note for that sum of "money. 
 
 Note.— As to " bank note," see sect. 29. A reference to sect. 83 
 of the Bills of Exchange Act, ante, p. 306, shows that many 
 instruments 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. v. Inland Revenue (1881), 7 Q. B. D. 165, where an in- 
 strument purporting to be a debenture, though coming within 
 the terms of this section, was held to be properly stamped as a 
 debenture, and ndt to require a note stamp. As to instruments 
 intended to operate as agreements and not as notes, see Mort- 
 gage Insurance' Corporation v. Inland Revenue (1888), 21 
 Q, B. D. 352, 0. A., where it was held that a document promising 
 to pay money, but containing other stipulations, did not require 
 a promissory note stamp. In Brown, Shipley & Co. v. Inland 
 Revenue^, (1895) 2 Q. B. 598, 0. A., it was held that promissory 
 notes issued, by an American railway, which contained a pledge 
 of collateral security, required to be stamped as "marketable 
 
 (/) See this section discussed in Buck v. Robson (1878), 3 Q. B. D. 
 686, where Ex parte Shellard (1873), L. R. 17 Eq. 109, was dis- 
 approved; and see, too, Fisher v. Calvert (1879), 27 W. R. 301, M. R. 
 
 (g~) The Committee of London Clearing House Bankers v. Inland. 
 Revenue, (1896) 1 Q. B. 222 and 542 in C. A. 
 
Statutes. 3" 
 
 * 
 
 securities " and not as promissory notes. In Speyer Bros. v. 54 & 55 Vict. 
 Inland Revenue, (1908) A. C. 92, H. L., it was held that gold o. 39. 
 coupon notes of the Mexican Government came within the defi- — 
 nition both of promissory note and marketable security, and 
 that the Crown was therefore entitled to demand the higher 
 duty, viz., the duty on marketable securities. But by sect. 8 
 of the Finance Act, 1897. (60 & 61 Wet. c. 24), County Cduncil 
 and municipal bills, though charged on v the local rate, are to 
 Tje stamped as promissory notes and not as marketable securities. 
 
 Sec. 34. — (1.) The fixed duty of [twopence] on a bill of Provisions 
 exchange payable on demand or at sight or on presentation a ajjesive 
 may be denoted by an adhesive stamp, which, where the bill stamps on 
 is drawn in the United Kingdom, is to be cancelled by the ^ ot g B 
 person by whom the bill is signed before he delivers it out r^ ot f 18 7 0) 
 of his hands, custody, or power. s - 50 -] 
 
 (2.) The ad valorem duties upon bills of exchange and £*£* ° f 1870 ' 
 promissory notes drawn or made out of the United Kingdom 
 are to be denoted by adhesive stamps. 
 
 Note. — By sect. 36 of the Finance Actj 1918, post, p. 415, 
 " twopence " is substituted for one penny in this section. The 
 proviso to sect. 38, enabling the person to whom a bill on 
 demand is presented for payment to stamp it, must be read in 
 with the present section. In Hobbs v. Cathie (1890), 6 Times 
 Tjaw Rep. ,292, it was held that a cheque which was stamped by 
 an intermediate holder, not the drawer, was improperly stamped. 
 Under sect. 10 of the Finance Act, 1899 (62 & 63 Vict. c. 9), 
 as amended by sect. 10 of the Revenue Act, 1909 (9 Edw. 7, 
 c. 43), post, p. 408, bills payable not more than three days 
 after date or sight may be stamped with a peiiriy stamp. This 
 sum is now raised to twopence. 
 
 Sec. 35. — (1.) Every person into whose hands any bill of Provisions as 
 exchange or promissory note drawn or made out of the United f or ei™ Mk 
 Kingdom, comes in the United Kingdom before it is stamped, and notes, 
 shall, before he presents for payment, or indorses, transfers, [Apt ° f 1870, 
 cir in any manner negotiates (h) 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 
 
 {/») Cf . Griffin v. Weatherby (1868), L. It. 3 Q. B. at p. 760. 
 
400 
 
 Appendix II. 
 
 54 & 68 Vict, 
 c. 39. 
 
 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; 
 
 (b) 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 not duly cancelled, it shall 
 be competent 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 
 cancelling an adhesive stamp. 
 
 Other bills Note. — The effect of the Act of 1891, as amended by the Acts 
 
 and notes, of 1899, 1909 and 1918, post, pp. 408, 415, appears to be this:— 
 
 how stamped. 1. Bills of exchange payable on demand, or not more than three 
 
 days after date or sight, may be stamped with an adhesive or 
 
 impressed twopenny stamp. Of. lie Boyse (1886), 33 Oh. D. 612. 
 
 2. Other bills, if drawn in the United Kingdom, must be stamped 
 
 with an impressed ad va'orem stamp, and if drawn abroad, with 
 
 adhesive ad valorem stamps. 3. Promissory notes, if made 
 
 abroad, must be stamped with adhesive ad valorem stamps, and 
 
 if made in the United Kingdom, with an impressed ad valorem 
 
 stamp. Of. Oetlinger v. Cohen, (1918) 1 K: B. 582. 
 
 Foreign By sect. 72 (1) of the Bills of Exchange Act, ante, p. 274, it 
 
 stamp laws. is provided that where a bill or note 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, 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. 
 
 As to bills 
 and notes 
 purporting 
 to be drawn 
 abroad. 
 [Cf . Act of 
 1870, s. 52.] 
 
 Terms unon 
 ■which bills 
 and notes 
 
 Sec. 36. — A bill of exchange or promissory note which 
 purports to be drawn or made out of the United Kingdom is, 
 for the purpose of determining the mode in which the stamp 
 duty thereon is to be denoted, to be deemed to have been so 
 drawn or made, although it .may in fact have been drawn 
 or made within the United Kingdom. 
 
 Note.— Compare sect. 4 of the Bills of Exchange Act, ante, 
 p. 17, as to o&er purposes. 
 
 Sec. 37. — (1.) Where a bill of exchange or promissory 
 note has been written on material bearing an impressed. 
 
Statutes. 401 
 
 stamp of sufficient amount but of improper denomination, it 54 & 55 Viet, 
 may be stamped with the proper stamp on payment of the "■ 39 - 
 duty, and a penalty of forty shillings if the bill or note be may be 
 
 not then payable according to its tenor, or of ten pounds if stam P e . d a ^ er 
 ,, f J & * execution.] 
 
 the same be so payable. r Act of 1870 
 
 (2.) Except as aforesaid, no bill of exchange or promissory s. 53.] 
 note shall be stamped with an impressed stamp after the 
 execution thereof. 
 
 Sec. 38. — (1.) Every person who issues (»), indorses, trans- Penalty for 
 
 fers, negotiates, presents for payment, or pays any bill of a„y™^ °" 
 
 . exchange or promissory note liable to duty and not being stamped bill 
 
 duly stamped, shall incur a fine of ten pounds, and the person ° r note " 
 
 1, + 1 • , ,, 1. l-„ [Act of 1870, 
 
 who takes or receives from any other person any such bill or g. 34 i 
 
 note (k) either in payment or as a security, or by purchase 
 
 or otherwise, shall not be entitled to recover thereon, or to 
 
 make the same available for any purpose whatever. 
 
 (2.) Provided that if any bill of exchange payable on 
 demand, or at sight, or on presentation, is presented for pay- 
 ment unstamped, the person to whom it is presented may affix 
 thereto an adhesive stamp of [twopence], 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. — By sect. 36 of the Finance Act, 1918, post, p. 415, Effect where 
 "two pence" is now substituted for "one" in this section, bill or note 
 As to the proviso, see note to sect. 34, ante, p. 399. n °t properly 
 
 In a Scotch case, a note made abroad was presented for pay- stamped. 
 ment unstamped, but was stamped before action brought. It 
 was held that the action was maintainable (I). 
 
 An unstamped bill Or note is admissible in criminal proceedings 
 (see sect. 14 of the Stamp Act), and as heretofore it would be 
 
 y ^ 
 
 (i) Seie sect. 2 of the Bills of Exchange Act, ante, p. 7, and notes, 
 and cf . Bank of Montreal v. Exhibit and Trading Co. (1906), 17 Com. 
 Cas. 250 (note signed in Liverpool and posted to payee in Canada). 
 
 (A) Cf. Maro v. Rouy (1874), 31 L. T. N. S. 372. 
 
 (I) Broddelim v. Orischotti (1887), 24 Sc. L. E. 386. 
 
 C. 
 
 26 
 
402 Appendix II. 
 
 54 & 55 Vict, admissible in evidence for the purpose of proving some purely 
 o. 39. collateral fact, such as fraud (m). 
 
 The holder of a bill 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 instrument as evidence (o). As the bill is void the 
 omission to present or give notice of dishonour is immaterial (p). 
 
 Possibly a person who indorses a bill, or transfers it by 
 delivery, undertakes that it is not void under the stamp laws 
 when transferred (q). 
 
 An unstamped bill or note is admissible for the purpose of 
 showing that it is not properly stamped, e.g., to negative defence 
 of payment by a bill (r), but is not admissible to prove the 
 receipt of money (s). A witness may also refresh his memory 
 by referring to an unstamped note (£). 
 
 No appeal lies from the decision of a judge wrongly admitting 
 an unstamped document (u) . 
 
 One bill only Sec. 39. — -When a bill of exchange is drawn in a set 
 
 be stamped according to the custom of merchants, and one of the set is 
 
 [Act of 1870, duly stamped, the other or others of the set shall, unless 
 
 s - 55 -] issued or in some manner negotiated {6s) apart from the 
 
 stamped bill, be 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 bill. 
 
 (m) Gregory v. Fraser (1813), 3 Camp. 453 (maker drunk) ; cf . 
 Sutton v. Toomer (1827), 7 B. & C. 416; Alpe's Stamp Laws, ed. 12, 
 pp. 33—38, but see Fengl v. Fengl, (1914) P. 274. 
 
 (») Brown y. Watts (1808), 1 Taunt. 353; of. Sutton v. Toomer, 
 supra; Plimley v. Westley (1835), 2 Bing. N. C. 249; and Gompertz 
 v. Bartlett (1853), 2 B. &'B. 849. 
 
 (o) Sweeting v. Raise (1829), 9 B. & C. 365; Jardine v. Payne 
 (1831), 1 B. & Ad. 663, at p. 670. 
 
 (p) Oundy v. Marriott (1831), 1 B. & Ad. 696. 
 
 (?) See sect. 55, ante, p. 213; sect. 58 (3), ante, p. 223; and 
 Gompertz v. Bartlett (i853), 23 L. J. Q. B. 65. 
 
 (r) Smart v. Nokes (1844), 6 1. d Gr. 911. 
 
 (s) Ashling v. Boon, (1891) 1 Ch. 568. Of. Durie v. Fielding 
 (1893), 20Ot. of Seas. Das. 295. 
 
 (t) Birchall v. Bullough, (1896) 1 Q. B. 325. 
 
 {u) Blewttt v. Tritton, (1892) 2 Q. B. 327, C. A. 
 
 (a) Cf. Griffin v. Weatherby (1868), L. E. 3 Q. B. at p. 760. 
 
Statutes. ■ 40-3 
 
 Amount of Duty as per Schedule. 5i & 55 Viot - 
 
 £ s. d c - 39 ' 
 
 Bill of exchange payable on demand, or at sight, Amount of 
 
 or on presentation, [or within three days after duty ' 
 
 date or sight («/)] [2] 
 
 And see sects. 32, 34, and 38. By sect. 36 of the Finance 
 Act, 1918, post, p. 415, the duty of one penny is increased to 
 twopence. 
 
 Bill of exchange of any other kind whatsoever (ex- £ s. d. 
 oept a bank note) and promissory note of any 
 kind whatsoever (except a bank note) 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 (ef . 
 sect. 6) of the money for which the bill or note ' 
 
 is drawn or made does not exceed £5 [2] 
 
 Exceeds £5 and does not exceed £10 2 
 
 10 „ 25 3 
 
 25 „ 50 i .0: 6 
 
 50 „ 75 ; 9 
 
 75 „ 100 10 
 
 >, 100— 
 for every £100, and also for any fractional part 
 of £100 of such amount or value 1 
 
 Note. — This scale is varied as regards bills of exchange above 
 50?. drawn and expressed to be payable out of the United 
 Kingdom, by sect. 10 of the Finance Act, 1899 (62 & 63 Vict. 
 c. 9), post, p. 408, which provides that where the amount of the 
 bill exceeds 501., the stamp shall be 6c?., and that where the 
 amount exceeds 100?. the stamp shall be 6c?. for every hundred 
 pounds and also for any fractional part of a hundred pounds of 
 that amount. 
 
 The fact that a bill is payable with interest does not affect the Bill payable 
 stamp (z), e.g., a note for 501. payable with interest at 5 per cent, with interest, 
 requires only a 6c?. stamp. 
 
 By sect. 36 of the Finance Act, 1918, post, p. 415, the one 
 penny duty is increased to twopence. 
 
 (y) These words are added by sect; 10 of the Finance Act, 1899 
 (62 & 63 Vict. c. 9), post, p. 408. 
 
 (z) Pruessing v. Ing (1821), 4 B. & Aid. 204; Wills v. Nott (1834), 
 4 Tyr. 726. ' 
 
 26 (2) 
 
404 Appendix II. 
 
 hi & 56 Vict. Exemptions. 
 
 c 39 
 
 ~ (1.) Bill or note issued by the Bank of England or Bank 
 
 Exemptions. „ T , -, 
 
 r of Ireland. 
 
 (2.) Draft or order drawn by any banker in the United 
 Kingdom upon any other banker in the United 
 Kingdom, 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 sum 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 1 
 authorizing 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 Aocountant-General of the Supreme Court of 
 Judicature in Ireland- 
 (6.) Warrant or order for the payment of any annuity 
 granted by the National Debt Commissioners, or for 
 the payment of any dividend or interest on any share 
 in the government or parliamentary stocks or funds. 
 (?.) Bill drawn by any person under the authority of the 
 Admiralty upon and payable by the Accountant- 
 Greneral of the Navy. 
 (8.) Bill drawn (according to a form prescribed by her 
 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 
 auxiliary forces, or for any other expenditure con- 
 nected 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. 
 
Statutes. 405 
 
 (10.) Bill drawn in the United Kingdom for the sole pur- 54 & 53 Vict, 
 pose of remitting money to be placed to any account c - 39- 
 of public revenue (a). 
 
 (11.) [Coupon or warrant for interest attached to and issued 
 with any security, or with an agreement or memo- 
 randum for the renewal or extension of time for 
 payment of a security (fo).] 
 
 Note.— And see sects. 32, 33, 34, 35, 36 37, 38 and 39. There 
 are also various special exemptions collected in Alpe's Stamp 
 Laws, ed. 12, p. 189, see, e.g., sect. 33 of the Friendly. Societies 
 Act, 1896, and sect. 38 of the Post Office Act, 1908 (8 Edw. 7, 
 c. 48). 
 
 Notarial Acts. 
 
 Sec. 90. — The duty upon a notarial act, and upon the Duty may be 
 
 protest by a notary public of a bill of exchange or promissory Jussive J 
 
 note, may be denoted by an adhesive stamp, which is to be stamp. 
 
 cancelled by the notary. [Act of 1870, 
 
 •> J s . 116.] 
 
 Note. — Where the duty on a bill or note does not exceed Is., Amount. 
 the 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. 
 
 Receipts. 
 
 Sec. 101. — (1.) For the purposes of this Act the expres- Provisions as 
 .,,,.,, , t . , . to duty upon 
 
 sion receipt includes any note, memorandum, or writing receipts. 
 
 whereby any money amounting to two pounds or upwards, [Act of 1870, 
 or any bill of exchange or promissory note for money J 
 
 amounting to two pounds or upwards, is acknowledged or 
 expressed 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 acknow- 
 ledged to have been settled, satisfied, or discharged, or 
 which signifies or imports any such acknowledgment, and 
 
 (a) 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: The Committee of London Clearing Bankers v. The 
 Commissioners of Inland Revenue, (1896) 1 Q. B. 222, 542, C. A. 
 
 (b) By sect. 40 of the Finance Act, 1894 (57 & 58 Vict. c. 30), a 
 coupon for interest on a marketable security as defined by the Stamp 
 Act, 1891, being one of a set of coupons, whether issued with the 
 security or subsequently issued in a sheet, shall not be chargeable with 
 any stamp duty. See, too, Bothsohild ■ v . Inland Revenue, (1894) 2 
 Q. B. 142. 
 
406 
 
 Appendix II. 
 
 54 & 55 Viot. 
 e. 39. 
 
 [Act of 1870, 
 s. 121.] 
 
 Terms upon 
 which 
 
 receipts may 
 be stamped 
 after execu- 
 tion. 
 
 [Act of 1870, 
 s. 122.] 
 
 Penalty for 
 offences in 
 reference to 
 receipts. 
 [Act of 1870, 
 s. 123.] 
 
 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 adhe- 
 sive 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 
 
 refuses to give a receipt duly stamped; or 
 (3.) Upon a payment to the amount of two pounds or 
 upwards 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. 
 Schedule. 
 
 EECEIPT given for, or upon the payment of, money 
 aounting to two pounds or upwards, one penny. 
 
 Exemptions. 
 
 (1.) Receipt given for money deposited in any bank, or 
 with any banker, to be accounted for and expressed 
 to be received of the person to whom the same is to 
 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.) Receipt given for or upon the payment of any parlia- 
 
 amou 
 
- Statutes. 407 
 
 mentary taxes or duties, or of money to or for the 54 & 55 Viet, 
 use of her Majesty. "• 39 ' 
 
 (4.) Receipt 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 imprest 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.) Receipt written upon a bill of exchange or promissory [Repealed 
 
 note duly stamped, or upon a bill drawn by any 68 Vict. °- 16 > 
 person under the authority of the Admiralty, upon 
 and payable by 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 
 Parliamentary 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 Blank 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. 
 (12.) Receipt given for any allowance by way of drawback 
 or otherwise upon the exportation of any goods or 
 merchandise from the United Kingdom. 
 (13.) Receipt given for the return of any duty of customs 
 
 upon a certificate of over entry. 
 Note.— And see sects. 101, 102, and 103. 
 
408 
 
 Appendix II. 
 
 54 & 55 Vict. 
 o. 39. 
 
 Indorsement 
 receipt. 
 
 By sect. 9 of the Finance Act, 1895 (58 & 59 Vict. c. 16), 
 " Exemption numbered eight under ths head ' Eeceipt ' in the 
 First Schedule to the Stamp Act, 1891, is hereby repealed; and 
 the duty shall be charged as if the exemption had not been 
 contained in that schedule; provided that neither the name of a 
 banker (-whether accompanied by words of receipt or not) written 
 in the ordinary course of his business as a banker upon a bill of 
 exchange or promissory note duly stamped, nor the name of the 
 payee written upon a draft or order, if payable to order, shall 
 constitute a receipt chargeable with stamp duty." 
 
 Seduction 
 of duty on 
 certain bills 
 of exchange. 
 
 THE FINANCE ACT, 1899. 
 
 (62 & 63 Vict. c. 9.) 
 
 Sec. 10. — -(1.) The duty payable under the Stamp Act, 
 1891, on bills of exchange drawn and expressed to be payable 
 out of the United Kingdom, when actually paid or indorsed 
 or in any manner negotiated in the United Kingdom, shall, 
 where the amount of the money for which the bill is drawn 
 exceeds fifty pounds, be reduced so as to be — 
 
 (a) where the amount exceeds fifty pounds and does not 
 exceed one hundred pounds, sixpence; and 
 
 (b) where the amount exceeds one hundred pounds, six- 
 pence for every one hundred pounds and also for any 
 fractional part of one hundred pounds of that amount. 
 
 (2.) The stamp duty chargeable under the Stamp Act, 
 1891, on bills of exchange expressed to be payable at a 
 period' not exceeding three days after date or sight shall be 
 one penny, in lieu of the duty now chargeable thereon; and 
 accordingly the first heading, Bill of Exchange, in the 
 Schedule to that Act, shall be read as if the words "or 
 within three days after date or sight " were contained therein, 
 after the word "presentation." 
 
 Note. — This section is explained or supplemented by sect. 10 
 of the Revenue Act, 1909 (9 Edw. 7, c. 43), which rune as 
 follows: — 
 
 10. The provisions in sections thirty-four and thirty-ieight of 
 the Stamp Act, 1891, which relate to bills of exchange payable 
 on demand or at sight, or on presentation, shall apply also to 
 bills of exchange expressed to be payable at a period not ex- 
 ceeding three days after date or sight which are chargeable with 
 the duty of [one penny] under sub-section (2) of section 10 of the 
 Finance Act, 1899. See now sect. 36 of the Finance Act, 1918, 
 post, p. 415. 
 
Statutes. 409 
 
 BILLS OF EXCHANGE (CROSSED CHEQUES) 
 ACT, 1906. 
 
 (6 Edw. 7, c. 17.) 
 
 An Act to amend section eighty-tum of the Bills of Exchange 
 Act, 1882. [4th August, 1906. 
 
 Sec. 1. A banker receives payment of a crossed cheque Amendment 
 for a customer within the meaning of section eighty-two of y ict K 61 
 the Bills of Exchange Act, 1882, notwithstanding that he s. 82. 
 credits his customer's account with the -amount of the cheque 
 before receiving payment thereof. 
 
 Sec. 2. This Act may be cited as the Bills of Exchange Short title. 
 (Crossed Cheques) Act, 1906, and this Act and the Bills of 
 Exchange Act, 1882, may be cited together as the Bills of 
 Exchange Acts, 1882 and 1906. 
 
 Note. — This Act was passed to get rid of the decision in 
 Capital and Counties Bank v. Gordon, A. 0. (1903), 240, H. L., 
 where it was held that if a bank received a crossed cheque from 
 a customer, and at once credited his account with the amount, 
 the bank became holders for value of the cheque ; and in receiv- 
 ing payment thereof, received it on their own account, and not 
 merely as agents for collection on behalf of their customer. They 
 therefore did not come within the protection given by sect. 82 
 of the Act of 1882 to collecting bankers. See ante, p. 304. 
 
 The Bill, which became the Act of 1906, was drafted by me 
 under instructions from Lord Halsbury in 1903, but it was 
 blocked in the House of Oommons till 1906. 
 
 THE COMPANIES (CONSOLIDATION) ACT, 1908. 
 
 (8 Edw. 7, c. 69.) 
 Sec. 63. — (1.) Every limited company — Publication 
 
 (a) shall paint or affix, and keep painted or affixed, its ij^ted y 
 name on the outside of every office or place in which its company, 
 business is carried on, in a conspicuous position in letters 
 
 easily legible: 
 
 (b) shall have its name engraven in legible characters on 
 its seal: 
 
 (c) shall have its name mentioned in legible characters 
 in all notices, advertisements, and other official publications 
 of the company, and in all bills of exchange, promissory 
 notes, endorsements, cheques, and orders for money or goods 
 
*10 Appendix 11. 
 
 8 Edw. 7, purporting 1 to be signed by or on behalf of the company, 
 c ' and in all bills of parcels, invoices, receipts, and letters of 
 
 credit of the company. 
 
 (2.) If a limited company does not paint or affix, and keep 
 painted or affixed, its name in manner directed by this Act, 
 it shall be liable to a fine not exceeding five pounds for not 
 so painting or affixing its name, and for every day during 
 , which its name is not so kept painted or affixed, and every 
 director and manager of the company who knowingly and 
 wilfully authorises or permits the default shall be liable 
 to the like penalty. 
 
 (3.) If any director, manager, or officer of a limited com- 
 pany, or any person on its behalf uses or authorises 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 autho- 
 rises the issue of any notice, advertisement, or other official 
 publication of the company, or signs or authorises to be 
 signed on behalf of the company any bill of exchange, pro- 
 missory note, endorsement, cheque, order for money or goods, 
 or issues or authorises 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 fine not exceeding fifty pounds, and shall further be person- 
 ally liable to the holder of any such bill of exchange, pro- 
 missory note, cheque, or order for money or goods, for the 
 amount thereof, unless the same is duly paid by the company. 
 
 Note. — This section reproduces, with verbal amendments, sects. 
 41 and 42 of the Companies Act, 1862 (25 & 26 Vict. c. 89),, 
 which in its turn reproduced sect. 31 of the 19 & 20 Vict. c. 47. 
 Under the last-mentioned enactment a hill was addressed to the 
 S. Steam Packet Co. The proper name was the 8. Steam 
 Packet Co., Limited. The secretary accepted the bill, signing; 
 it "J. M., Secretary to the said Company." He was held per- 
 sonally liable on this acceptance: Penrose v. Martyr (1858), 
 B. B. & E. 499; cf. Atkins v. Wardle (1889), 58 L. J. Q. B. 
 377, where the words forming the company's name were trans- 
 posed, and Nassau Steam Press v. Tyler (1894), 70 L. T. N. S. 
 376, where words were added in the company's name. But 
 where, by an accident in stamping the company's name to an 
 acceptance the word " limited " did not appear as it passed the 
 margin of the paper, the acceptance was held to be the accept- 
 ance of the company: The Dermatine Co. v. Ashworth (1905), 
 21 Times L. E. 510. The address to the drawee and the accept- 
 
Statutes. 411 
 
 ance must be construed together: Stacey & Co. v. Wallace 8 Edw f 
 (1912), 106 L. T. 541. o. 69. ' 
 
 Sec. 77. A bill of exchange or promissory note shall be Bills of 
 deemed to have been made, accepted, or indorsed on behalf promissory™ 
 of a company if made, accepted, or indorsed in the name of, notes, 
 or by or on behalf or on account of, the company, by any 
 person acting under its authority. 
 
 Note. — This section reproduces, with a verbal alteration, sect. 
 47 of the Companies Act, 1862 (25 & 26 Vict. c. 89). See some 
 general remarks on' the repealed section in Ex p. Over end 
 (1869), L. B. 4 Oh. App. at pp. 472, 473; Re Barber (1870),- 
 L. E. 9 Eq. 732, 735. Compare to like effect the Industrial 
 and Provident Societies Act, 1893 (56 & 57 Vict. c. 39), sect. 33. 
 
 Sect. 77 does not confer on all limited companies the capacity 
 to issue bills and notes. It refers only to such companies as 
 have the requisite capacity; cf. Re Peruvian, Railways Co. (1867), 
 L. E. 2 Ch. 617. To render a company liable on a negotiable 
 instrument three conditions must be fulfilled: 1. The company 
 must have the requisite capacity, see notes to sect. 22 of the 
 Act, ante, p. 72. 2. The signature must be affixed by some 
 person having authority to sign on behalf of the company, see, 
 e.g., Premier Industrial Bank v. Carlton Manufacturing Co., 
 (1909) 1 K. B. 106. 3. The signature must be in such form 
 as to be the signature .of and bind the company, see, e.g., Chap- 
 man v. Smethurst, (1909) 1 K. B. 927, C. A.; Stacey v. 
 Wallace (1912), 106 1. T. N. S. 541, and notes to sect. 22, 
 ante, p. 72. 
 
 THE BANKRUPTCY ACT, 1914. 
 
 (4 & 5 Geo. 5, c. 59.) 
 
 Schedule I., R. 11. 
 
 11. A creditor shall not vote in respect of any debt on or Voting- by 
 secured by a current Ml of exchange or promissory note held holder, 
 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, which reproduces rule 11 of the Act of 
 1883, substantially follows a clause in Sir J. Holker's Bill of 
 1880. Before the Act of 1883 a bill holder was held to be merely 
 a guaranteed and not a secured creditor. He was treated as 
 
412 
 
 Appendix II. 
 
 4 & 5 Geo. 5, 
 u. 59. 
 
 Two or more 
 firms, &o. 
 
 Foreign 
 bankruptcy 
 and double 
 proof. 
 
 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 bill 
 against all 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 only prove for the balance. See, e.g., 
 Ex parte Newton (1880), 16 Oh. D. 330, 0. A.; Em parte 
 Schofield (1879), 12 Oh. D. 337, C. A. (bills indorsed and 
 advances made pending discount). The present rule deals 
 only with his right to vote, not with his right to dividends. 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. See further Williams' 
 Bankruptcy, ed. 11. 
 
 Schedule II., R. 19. 
 Proof in respect of Distinct Contracts. 
 .19. If a debtor was at the date of the receiving order liable 
 in 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, which reproduces rule 18 of the Act of 
 1883, is taken from sect. 37 of the Act of 1869, which generalised 
 sect. 152 of the Act of 1861, which only applied to bills and 
 notes. See the history and policy of the enactment discussed by 
 Lord Blackburn in Banco de Portugal v. Waddell (1880), 5 App. 
 Oas. at p. 171. 
 
 The object of the enactment is to over-ride the rule forbidding 
 double proof where there are two firms with a common partner. 
 It does not apply to the case of the same firm carrying on busi- 
 ness in two places under different names (Ibid.). If in such 
 case the foreign 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 bank- 
 ruptcy 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 Oh. 914. 
 
Statutes. 413 
 
 By Rule 252 of the Bankruptcy Rules, 1915, it is provided 4 & 5 Geo. 5, 
 that, " Where a creditor seeks to prove in respect of a bill of c ° 9 
 
 exchange, promissory note, or other negotiable instrument or Production of 
 
 security on which the debtor is liable, such bill of exchange, proo f # 
 
 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." 
 
 Note. — See Williams' Bankruptcy, ed. 11. 
 
 By Rule 269 of the Bankruptcy Rules, 1915, it is provided Production 
 that, " Subject to the provisions of section 70 of the Bills of for dividend - 
 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 bill 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." 
 
 THE BILLS OF EXCHANGE ACT, 1914. 
 
 (4 & 5 Geo. 5, c. 82.) 
 
 An Act to make ■provision in connection with the present 
 war with respect to Bills of Exchange payable outside 
 the British Islands. [18th September, 1914. 
 
 Be it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament as- 
 sembled, and by the authority of the same, as follows: — 
 
 Sec. 1. Without prejudice to the operation of subsec- Belay in 
 tion (1) of section forty-six of the Bills of Exchange Act, J^^j"^* 
 1882, delay in the presentment for payment of a bill of payment due 
 exchange, where the proper place for payment is outside the to war ' , 
 British Islands, is excused if the delay is, or has been, due 0i 61 _ 
 either directly or indirectly to circumstances arising out of 
 
414 
 
 Appendix II. 
 
 4 & 5 Geo 
 o. 82 
 
 Provision a: 
 to bills of 
 exchange 
 lost owing 
 to war. 
 
 . 5, the present war, or to the impracticability, owing to similar 
 circumstances, of transmitting the bill to the place of pay- 
 ment with reasonable safety. 
 
 Sec. 2. Where, in any action or proceeding upon a bill 
 of exchange payable outside the British Islands, it is shown 
 to the court that the bill has been lost and that the loss can 
 reasonably be presumed to be due to circumstances attribut- 
 able directly or indirectly to the present war, the court may 
 allow proof of the bill to be given by means of a copy 
 thereof certified by a notary public, or by means of such other 
 evidence as the court think reasonable under the circum- 
 stances: Provided that such indemnity be given against the 
 claims of other persons as the court may require. 
 
 As to lost bills generally, see sects. 69 and 70 of the Bills of 
 Exchange Act, 1883, ante, p. 267. 
 
 Duration. Sec. 3. His Majesty may, by Order in Council, at any 
 
 time determine the operation of this Act, or provide that 
 this Act shall have effect subject to such limitations as may 
 be contained in' the Order; but, subject to the operation of 
 any such Order in Council, this Act shall have effect during 
 the continuance of the present war and for a period of six 
 months thereafter. 
 
 Short title. Sac. 4. This Act may be cited as the Bills of Exchange 
 
 Act, 1914. 
 
 Time of 
 noting. 
 45 & 46 Vict. 
 c. 61. 
 
 BILLS OF EXCHANGE (TIME OF NOTING) ACT, 
 
 1917. , 
 
 (7 & 8 Geo. 5, c. 48.) 
 An Act to amend the Bills of Exchange Act, 1882, with 
 respect to the time for noting Bills. 
 
 [8th November, 1917. 
 Be it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament as- 
 sembled, and by the authority of the same, as follows: — 
 
 Sec. 1. In subsection (4) of section fifty-one of the Bills 
 of Exchange Act, 1882 (which relates to the time of noting 
 a dishonoured bill), the words " it must be noted on the day 
 of its dishonour " shall be repealed, and the following words 
 
Statutes. 415 
 
 shall be substituted therefor, namely, " it may be noted on 7 & 8 Geo. 5, 
 the day of its dishonour and must be noted not later than; "■ 4 , 8 - 
 the next succeeding business day." 
 
 Sec. 2. This Act may be cited as the Bills of Exchange Short title 
 (Time of Noting) Act, 1917, and shall be construed as one ^? t °^ 
 ■with the Bills of Exchange Act, 1882, and the Bills of 6 Edw j 
 Exchange Acts, 1882 and 1906, and this Act may be cited o. 17. 
 together as the Bills of Exchange Acts, 1882 to 1917. 
 
 THE FINANCE ACT, 1918. 
 
 (8 & 9 Geo. 5, c. 15.) 
 
 Paet IV. 
 
 Stamps. 
 
 Sec. 36.- — (1.) Twopence shall be substituted for one penny Increase of 
 as the stamp duty on all bills of exchange and promissory, stam P <™y 
 notes chargeable under the First Schedule to the Stamp Act, bills of 
 1891, with duty at the rate of one penny and drawn on or exelm nge. 
 after the first day of September, nineteen hundred and 
 eighteen, and twopence shall accordingly be substituted for 
 one penny in sections thirty-four and thirty-eight of the 
 Stamp Act, 1891. 
 
 (2.) The provisions of subsection (2) of section thirty- 
 eight of the Stamp Act, 1891, shall apply so as to enable an 
 adhesive penny stamp to be fixed on any bills of exchange 
 to which that subsection applies being bills which are liable 
 to a duty of twopence under this section and are stamped 
 only with a penny stamp, as they apply with respect to the 
 fixing of a stamp on an unstamped bill. 
 
 (3.) Subsection (1) of section thirty-eight of the Stamp 
 Act, 1891, shall not operate so as to render any bill of 
 exchange which is liable to a duty of twopence under this 
 • section and is stamped with a penny stamp invalid for any 
 purpose until the first day of December, nineteen hundred 
 and eighteen, if the person who takes or receives the bill 
 fixes thereto an adhesive stamp of one penny and cancels 
 the stamp. 
 
( 417 ) 
 
 INDEX. 
 
 Acceptance, 
 
 defined, 3, 9, 45 
 
 delivery or notification to complete, 58— 63. See Delivery. 
 
 cancellation of, by holder, 244 
 
 revocation of, by drawee, 58, 59 
 
 what it admits, 210 
 
 must be signed, and on bill, 48 
 
 requisites in form, 48 
 
 form and interpretation when laws conflict, 274, 276 
 
 bill in a set, 270 
 
 place on a bill, 48, 49 
 
 not promising payment of money, 48 
 
 date, when necessary, and how supplied, 35, 36 
 
 proper date after previous refusal to accept, 49, 50 
 
 injunction to restrain, 155, 156 
 
 Time of: 
 
 before bill complete in point of form, 49, 54 
 
 after maturity, 33, 49 
 
 after dishonour, 49 
 
 presumption as to time when undated, 50 
 By whom: 
 
 in general by drawee, 45 
 
 by person other than drawee, 47 
 
 by one of several drawees, 52. See Qualified Ac- 
 ceptance. 
 
 by two or more drawees, 21. See Joint Parties. 
 
 by drawee in assumed name, 75, 76 
 
 by fictitious person, 19, 158, 170, 190. See Fic- 
 titious Name or Party. 
 
 capacity to accept in general, 68 
 
 by infant, 70 
 
 by married woman, 69, 70 
 
 by company or corporation, 72 
 
 by banker, 74 
 
 authority to 'accept in general, 321 
 
 by partner, 7$ — 81. See Partner. 
 
 by lunatic or drunken man, 70 
 c. 27 
 
418 Index. 
 
 Acceptance — continued. 
 
 by agent, 87, 89. See Principal and Agent. 
 forged or unauthorized, 81 
 construed with address to drawee, 46, 47, 90 
 blank signature filled up as, 54 — 58, 
 payable at bankers, 52, 53, 157. See Bank. 
 material alteration in, 245 
 cross-acoeptance as consideration, 93 
 of cheque or demand draft, 157 
 
 presentment for, 152 — 162. See Presentment for Ac- 
 ceptance. < 
 obligation to .accept, 207, 208 
 General or Qualified: 
 
 what general, 50 
 
 what qualified, 51 
 
 effect of qualified, 51 — 53, 162 
 
 holder's option to take qualified, 161 
 
 holder's duty after taking qualified, 162 
 See Acceptor — Drawee — Signature. 
 
 Acceptance foe Honour Supra Protest, 
 what bills may be so accepted, 259 
 who may accept, 259 
 
 for whose honour bill may be accepted, 259 
 presumption when party not named, 260 
 holder's option to refuse, 259 
 time for, 259 
 mode of accepting, 260 
 form, 260 
 
 act of honour on, 260, 384 
 for part of amount of bill, 260 
 effect on holder's right of action, 161 
 Acceptor supra protest: 
 
 contract with holder, 261 
 
 estoppels which bind, 262 
 
 presentment for payment to, 262 
 
 excuses for non-presentment and delay, 263 
 
 rights and duties on payment, 264 
 
 Acceptor, 
 defined, 9 
 accommodation acceptor, 101. See Accommodation 
 
 Party. 
 who liable as, 44, 45 — 48 
 
Index. 419 
 
 Acceptoe — continued. 
 signature of, 48 
 
 bankruptcy of. See Bankruptcy. 
 death of. See Death. 
 contract with folder, 209 
 liability contrasted with drawer's, 209, 210 
 how far drawer or indorser is surety for, 209, 210 
 compared with maker of note, 13, 307, 316 
 relations inter se of joint, 227. See Joint Parties. 
 estoppels which bind, 210 
 measure of damages against, 217 — 222 
 damages when laws conflict, 278 
 payment by, as a discharge, 227 
 effect when he is holder of bill at maturity, 241 
 waiver of rights against, 242 
 cancellation of signature, 244 
 giving time to, or compounding with, 251 — 257 
 presentment for payment to charge, 201. See Present- 
 ment for Payment. 
 notice of dishonour to, or protest, 202. See Notice of 
 
 Dishonour. 
 Statute of Limitations, as to, 337 
 rights of, to securities for bill, 344, 348 
 How Liability of Acceptor negatived: 
 
 conditional acceptance and condition unperformed, 
 51, 53 
 
 intention to sign a different document, 323 
 
 forgery, &c, 81—86 
 
 capacity negatived, 68 — 75 
 
 consideration negatived (including fraud or ille- 
 gality), 111—130 
 
 transfer of property to holder negatived, 62, 63, 112 
 
 jus tertii, 62, 63, 112, 119 
 
 discharge of bill or discharge inter partes, 227 
 
 Accommodation Bill, 
 defined, 101 
 
 term used in different senses, 102, 103 
 value subsequently given for, 97 
 pledge of, 99 
 
 when deemed to be issued, 247 
 presumption as to bill not being, 109, 191 
 negotiated by payee after bankruptcy, 148, 149 
 27(2) 
 
420 Index. 
 
 Accommodation Bill — com-Utmed. 
 
 bankruptcy of drawer, when acceptor has security, 
 
 225, 226 
 costs of defending action on, 225 
 negotiation after maturity, 137 
 presentment for payment, when excused, 172 
 notice of dishonour, when excused, 190, 192 
 payment by acceptor or maker as discharge, 227 
 payment by person accommodated as discharge, 234 
 discharge of surety by dealings with principal, 251 — 257 
 foreign discharge of, 280 
 proof on, 99, 146 
 Statute of Limitations, 339 
 securities for, 256, 351 
 
 Accommodation Party, 
 defined, 101 
 
 liability to holder for value, 101, 113 
 special defences available to, 103 
 liability to person accommodated, 112 
 considered as surety, 102, 226 
 rights on becoming a party, 226 
 rights when compelled to pay, 225, 226, 351 
 voluntary payment by, 225 
 rights of contribution inter se, 225, 226 
 
 Accord and Satisfaction, 
 discharge of bill by, 228 
 discharge by accord without satisfaction, 242 — 244 
 
 " Account P.ayee," 305 
 
 Acknowledgment, 
 
 to defeat Statute of Limitations, 340 
 
 Act of Honour, 
 
 on acceptance supra protest, 260 
 on payment supra protest, 264, 384 
 stamp on, 405 
 
 Action, 
 
 includes counter-claim and set-off, 3 
 
 holder may bring, in his own name, 142 
 
 in whose name when bill payable specially, 144 
 
 in whose name when bill payable to bearer, 144, 145 
 
 defences against holder suing as agent or trustee, 143 
 
 defences available to accommodation party, 103, 112 
 
Index. 421 
 
 Action — contin ued. 
 
 lost bill or note, 267, 268, 414 
 
 compared with, proof, 146 
 
 husband and wife, 147 
 
 by executor or administrator, 147 
 
 costs of defending on accommodation bill, 225 
 
 proceeding for costs against parties sued concurrently, 
 
 228 
 transfer of bill after, action brought, 135, 136 
 • Statute of Limitations, 336 — 342. See Limitations. 
 Right of: 
 
 on, and collateral to, instrument distinguished, 224, 
 
 226, 227, 339 
 on bill, and on consideration, distinguished, 118, 119, 
 
 224, 250 
 giving bill suspends, 353 
 effect of renewing bill, 257, 258 
 when complete against drawer and indorser, 161, 
 
 173 
 on non-acceptanoe, 161 
 on non-payment, 173, 174 
 
 Acts. See Bills of Exchange Act — Statutes. 
 
 Address, 
 
 sufficiency of, when notice sent by post and lost, 185 
 
 of drawer or indorser of dishonoured bill not known, 187 
 
 to drawee in bill, 9, 12 
 
 Adhesive Stamp, 
 
 when to be used, 399 — 401. See Stamp. 
 
 Administrator. See Executor and Administrator. 
 
 Advice {Letter of), 13, 208 
 
 After Date {Bill payable), 
 omission of date, 35, 36 
 new and old style, date in, 15 
 calculation of maturity, 38, 41, 42 
 presentment for acceptance, when necessary, 152 
 extension of time if bill comes forward late, 153 
 acceptance after maturity, 33 
 duty of agent to present with diligence, 153 
 presumed time of undated acceptance, 50 
 post-dated cheque resembles, 33, 38 
 usances, 41 
 
422 Indkx. 
 
 After Sight (Bill payable), 
 
 computation of maturity, 38, 41 
 omission of date in acceptance, 35, 36 
 date, after previous refusal to accept, 49 
 presentment for acceptance required, 152 
 time for presentment, 154 
 duty of agent to present with diligence, 153 
 maturity of, if accepted for honour, 42 
 meaning of term in note, 42 
 
 Agent. See Principal and Agent. 
 
 Alien Enemy, 
 defined, 73 
 intercourse with, prohibited, 73. See War. 
 
 Allonge, 125, 126 
 
 Alteration, 
 
 what material, 245, 248 
 
 what immaterial, 249 
 
 effect of material on bill, 245 
 
 effect of stamp laws, 247 
 
 effect on right to sue for consideration, 250 
 
 onus probandi as to, 251 
 
 payment in ignorance of, 234, 245 
 
 Alternative, 
 drawee, 21 
 payee, 22 
 maker of note, 21 
 place of payment, 16, 166 
 mode of payment, 11 
 
 Ambiguous Instruments, 10, 330 
 
 American Law, 
 
 codification of, Preface. 
 
 Amount, 
 
 bills and notes under 20s.... 12 
 notes to bearer under £5... 308 
 notes to bearer under £20... 308 
 See Sum Payable. 
 
 Antecedent Debt, 
 
 as consideration for bill, 94, 95 
 
 Ante-dated Instruments, 37, 38 
 
Index. 423 
 
 Assignment, 
 
 transfer of bill or note by, 150 
 distinguished from negotiation, 122, 123 
 See Equitable Assignment — Transfer. 
 
 Authority, 
 
 distinguished from capacity, 68, 78 
 
 general rule as to, 321 
 
 to sign bills, how given, 321 
 
 to sign bills, how construed, 322 
 
 to draw no authority to endorse, 321 
 
 to draw cheque no authority to draw bill, 321 
 
 to fill up blanks, 54 
 
 to fill up date, 35, 36, 54 
 
 of partner. See Partner. 
 
 of agent. See Principal and Agent. 
 
 when revoked by death, 55. See also Cheque. 
 
 false representation of, 89 
 
 Aval, 216 
 
 Bank and Banker, 
 
 banker defined, 3, 75, 306 
 
 restrictions on acceptance or issue of bills or notes by, 74 
 
 effect given to usage among, 329 
 
 "marginal notes" or receipts of, 98 
 
 general relations with customer, 95, 291 — 295 
 
 lien on customer's bill, 100 
 
 when holder for value of customer's bills, 95, 100, 150, 304 
 
 retractation of payment by, 228 
 
 clearing-house recognised at law, 168, 228 
 
 right to retain paid cheque against customer, 293 
 
 obligation to honour customer's cheques, 208, 292 
 
 effect of garnishee order, 291 
 
 effect of pass-book, 293 
 
 when customer may over-draw, 293 
 
 effect of customer's death or bankruptcy, 289, 290 
 
 customer's lunacy, 294 
 
 relations with holder of cheque, 203 — 209 
 
 obligation to pay customer's bills, 294 
 
 paying forged' cheque or bill, 81 — 85, 237 
 
 paying acceptance against forged bill of lading, 294 
 
424 Index. 
 
 Bank and Banker — continued. 
 
 how if payee be fictitious, 23 
 
 paying cheque held under forged indorsement, 239 
 
 paying altered cheque, 245 — 250 
 
 duty when cheque crossed to more than one, 299 
 
 receiving payment of crossed cheque for customer, 302 
 
 payment of crossed cheque by, 299 — 301 
 
 duty as collecting agents, 153, 166, 184, 305 
 
 banking hours, recognized, 156, 165 
 
 Branch Banks: 
 
 general status as to bills, 292 
 notice of dishonour sent through,. 184, 185 
 right to combine accounts against customer, 292 
 duty to pay cheques drawn on another branch, 292 
 transfer of accounts, 292, n. 
 
 Bill accepted payahle at Bank: 
 duty to customer to. pay, 294 
 no duty to holder, 205 
 when a qualified acceptance, 51 
 presentment for payment of, 167, 201, 202 
 payment when indorsement forged, 82, 83, 236 
 payment when payee is fictitious, 23 
 changing banker's name a material alteration, 249 
 adding banker's name to ordinary' acceptance, 249 
 
 Bank Charter Acts, 74 
 
 Bank Holiday, 
 
 bill falling due on, 39. See Payment of Bill. 
 when excluded in computing time, 325 
 Acts relating to, 388—392 
 
 Bank Note, 
 
 defined, 309, 396 
 
 negotiability of, 363 
 
 distinguished from ordinary note, 309 
 
 re-issue of, 309, 397 
 
 restrictions on issue, 74 
 
 effect of payment by country notes, 193, 223 
 
 halves sent by post, 60 
 
 stamp on, 397 
 
 circular notes, 368 
 
 Bank Post Bill, 309, 364 
 
Index. 425 
 
 Bank of England, 
 
 exclusive privileges of issue, 74 
 notes as legal tender, 11 
 saving for privileges of, 331 
 
 Bankrupt, 
 defined, 4 
 
 Bankruptcy, 
 
 holder's right of proof, 146 
 
 accommodation bill held as security, 99 
 
 rule as to double proof, 146, 412 
 
 creditor holding security, 146, 256 
 
 of acceptor supra protest before maturity, 259 
 
 effect of foreign discharge, 280 
 
 double insolvency, rule in Ex parte Waring, 348 
 
 production for proof or dividend, 413 
 
 voting in bankruptcy by bill holder, 411 
 
 Of Holder: 
 1 when bill vests in trustee, 148 
 
 reputed ownership, 149 
 
 accommodation bill for holder's benefit, 149 
 negotiation after, 149 
 payment after, 149 
 when bankrupt may sue, 148 
 
 Of Drawee or Acceptor: 
 
 presentment for acceptance after, 157, 158 
 
 presentment for payment after, 171 
 
 notice of dishonour to drawer or indorser after, 188 
 
 effect of taking composition from acceptor, 252 
 
 protest for better security, 197 
 
 effect of taking composition from acceptor, 252 
 
 effect of part-payment by drawer or indorser, 234 
 
 of drawee as breach of contract with drawer, 208 
 
 Of Drawer or Indorser: 
 
 to whom notice of dishonour to be given, 182 
 
 of drawer as revoking drawee's authority to accept, 
 
 207 
 of drawer of accommodation bill, 226 
 of drawer of cheque, 290 
 
 See also Securities for Bills of Exchange. 
 
 Bearer, 
 
 defined, 4 
 
 included in term " holder," 5 
 
426 Index. 
 
 Bearer — continued . 
 Bill payable -to: 
 
 defined, 27 ' 
 
 bill is, when payee fictitious, 23 
 
 bill indorsed in blank is, 27, 121 
 
 negotiated by delivery, 121 
 
 effect of indorsing, 214 
 
 who may sue on, 145 
 
 issued or accepted by banker payable on demand, 74 
 
 note under £20 payable on demand, 308 
 
 note under £5 payable on demand, 308 
 
 Better Security, 
 protest for, 197 
 
 Bill Broker, ■ 
 lien of, 101 
 guaranteeing discounted bills, 125 
 
 Bill op Exchange, 
 
 definition, 9 
 
 definition for stamp purposes, 397 
 
 compared with cheque, 284 
 
 compared with promissory note, 12, 316 
 
 when it may be treated as a note, 10, 19 
 
 when considered as personal chattel, 86, 150, 278 
 
 inland and foreign, 17 
 
 origin and history, Introd. 
 
 different theories in England and France, Introd. 
 
 conflict of laws as to. See Conflict of Laws. 
 
 Form and Interpretation, 9 — 67 
 
 Capacity of Parties, 68 — 75. See Capacity. 
 
 Authority of Parties, 68, 75 — 92. See Partner — Principal 
 and Agent. 
 
 Forgery, 81 — 86. See Forgery. 
 
 Consideration for, 93 — 120. See Consideration. 
 
 Transfer, 121 — 151. See Transfer. 
 
 Actions on and Proof, 143 — 146. See Action — Proof. 
 
 Duties of Holder, 153—202 
 
 Contracts arising out of, 
 
 drawer and drawee, 207. See also Cheque. 
 
 drawee and holder, 204, 239 
 
 acceptor and holder, 209, 210 
 
 drawer or indorser and holder, 212 — 214 
 
 transferor by delivery and transferee, 222 — 225 
 
Index. 427 
 
 Bill of Exchange — continued. 
 
 Contracts arising out of — continued. 
 
 acceptor supra protest and holder, 261 
 accommodation party and person accommodated, 
 225, 226 
 Discharges. See Discharges. 
 Limitations of Actions. See Limitations. 
 Stamp Laws. See Stamp. 
 Securities for Bills. See Securities for Bills. 
 
 BlLL.ffi NuNDINALES, 35 
 
 Bill of Lading, 
 
 holder of bill presenting forged, 114, 348 
 
 banker accepting for customer against forged, 294 
 
 ' See Securities for Bills. 
 
 Bills of Exchange Act, 1882, 
 
 Parliamentary history of, In trod. 
 
 local extent of, 1 
 
 how far declaratory, 2 
 
 changes in law effected by, 2 
 
 not retrospective, 2 
 
 applies only to bills, notes, and cheques, 3, 387, 388 
 
 savings, 328—331 
 
 Acts repealed by, 327, 334 
 
 See also Scotland (Scotch Law). 
 
 Bills of Exchange Act, 1906... 303, 304, 409 
 
 Bills of Exchange Act, 1914... 269, 413 
 
 Bills of Exchange (Time of Noting) Act, 1917... 196, 414 
 
 Blank, or Blank Signature, 
 blank signatures, 54 
 authority to fill up, in bill, 54 — 58 
 effect if not filled up, 11, 20, 32 
 fraudulently filled up, 54—58, 236 
 filling up date, 35, 36 
 Indorsement in blank: 
 
 definition, 130 
 
 effect, 130 
 
 conversion into special, 131 
 
 followed by special, 28, 131 
 
 action on bill indorsed in blank, 145 
 
428 Index. 
 
 Bona Fides, 
 
 bond fide holder, 105, 108 
 
 test of, in holder, 318 
 
 presumption of, in holder, 109 
 
 test of, in payor, 227 
 
 of person without title receiving payment, 234 — 239 
 
 Bonds to Bearer {Foreign), 
 negotiability of, 364 
 
 non-liability of foreign government on, 368 
 debentures, 369 
 
 Branch Banks, 184, 292. See Bcmk. 
 
 Business Days, 
 
 what are, or are not, 325, 326 
 
 Cancellation, 
 
 of bill or signature by holder, 244 
 
 if by mistake, 245 
 
 of bill by order of Court, 86 
 
 of acceptance by drawee, 58 
 
 of indorsement by indorser, 58, 131 
 
 Capacity, 
 
 general rule, 68 
 
 distinguished from authority, 68 
 
 capacity to incur liability, 68 
 
 capacity to transfer, 68, 73 
 
 effect of incapacity of one party on liability of others, 
 
 68, 69 . 
 
 conflict of laws, 69 
 clergyman, 69 
 felon, 69 
 
 lunatic or drunkard, 70 
 infant's liability on bill, 70, 71 
 infant's power to transfer bill, 70, 71 
 married woman, 69, 70 
 divorced woman, 70 
 company or corporation's liability, 72 
 
 po-wer to transfer, 73 
 trading and non-trading companies, 72 
 statutory disabilities of bankers, 74 
 alien enemy, 73 
 
Index. 429 
 
 Case of Need, 
 
 meaning of term, 42, 43 
 
 designated by indorser, 43 
 
 cannot accept without protest, 43, 259 
 
 option of holder to present to, 43, 259 
 
 Cause of Action. See Action. 
 
 Certainty {Requisite in Bill or Note), 
 required in form of bill, 12 — 14 
 time of payment, 34 
 designation of drawee, 20 
 
 of payee or indorsee, 21, 131 
 sum payable, 29 
 
 Certified Cheque, 285 
 
 Channel Islands, 1, 17 
 
 Chattels, 
 
 bills considered as, 86, 99, 150, 278 
 
 Cheque, 
 
 denned, 283 
 
 provisions as to bills, how far applicable to, 283 
 
 distinguished from ordinary bill of exchange, 284 
 note payable on demand, 284 
 
 sum for which it may be drawn, 285 
 
 acceptance of cheque by banker, 284. See Banker. 
 
 marked cheque, -285 
 
 certified cheque in America, 285 
 
 time for presenting in general, 286 
 
 to charge drawer, 287 
 
 to charge indorser, 163, 288 
 
 notice of dishonour, when required, 285 
 
 when deemed overdue or stale, 139 
 
 relations between banker and holder, 204, 208 
 
 "account payee," 305 
 
 rights of holder when drawer discharged, 286 
 
 banker's duty to honour cheque, 208, 292 
 
 countermand of payment, 289, 290 
 
 over-drafts, 293 
 
 effect of customer's death or bankruptcy, 289, 290 
 
 donatio mortis causa, 289 
 
 lunacy of customer, 294 
 
 effect of garnishee order, 291 
 
430 Index. 
 
 Cheque — continued. 
 
 payment by banker when held under forged indorse- 
 ment, 239 
 right to duplicate, when lost, 267 
 action on lost cheque, 267, 268 
 property in paid cheque, 293 
 construction of authority to draw, 80 
 liability of non-trading corporation on, 73 
 entries in pass-book, 293 
 stamped as bills on demand, 397 
 mode of stamping in general, 400, 415 
 stamping after issue, 400 
 
 is not an assignment of funds in England, 204 
 an assignment in Scotland, 204 
 effect of as payment, 352 
 French law, 285 
 Post-dated: 
 
 validity and effect of, 37, 38 
 
 authority to draw, 321 
 
 former custom of London bankers not to pay, 329 
 Crossed: 
 
 delay in presentment caused by crossing, 288 
 
 general and special crossings, 296 
 
 history of crossing, 296 
 
 who may cross, 297, 298 
 
 two or more special crossings, 298 
 
 effect of crossing as regards the drawer, 299, 300 
 
 as regards holder and agent for 
 
 collection, 299—301 
 as regards (drawee) banker, 301 — 
 305 
 
 meaning and effect of " not negotiable/' 301, 304 
 
 invisible crossing or obliteration, 299, 300 
 
 alteration of crossing, 298 
 
 See Banker — Bill of Exchange — Crossed Cheque. 
 
 Chose in Action, 
 
 bill assignable as, 150. See Transfer. 
 
 Christmas Day, 
 
 bill falling due on, 39, 40 
 
 when excluded in computing time, 325 
 
 Circular Notes, 368 
 
Index. 431 
 
 Clearing House, 
 
 presentment of bill through, 168 
 payment as between bank and bank, 228 
 
 Clergyman, 
 
 capacity to contract by bill, 69 
 
 Coercion, 108, 109, 116 
 
 Coincidence op Eight and Liability, 241 
 
 Collateral Agreements, 67 
 
 Collateral Security, 
 
 evidence to show bill is, 63, 99 
 effect when bill held as, 99, 100, 101 
 note containing pledge of, 310 
 See Securities jor Bills. 
 
 Collection (Indorsement for), 
 
 in express terms, 132. See Restrictive Indorsement. 
 revocation by indorser, 132 
 misappropriation by indorsee, 62, 63, 104, 108 
 rights of indorsee, 104, 143, 144 
 duties of collecting agents, 153, 166 
 collecting banker, 301 — 305 
 
 Companies Consolidation Act, 1908. ..409 — 411 
 
 Company and Corporation (in general), 
 trading and non-trading, 72 
 capacity to incur liability, 72 
 power to transfer bills, 73 
 special rules as to banks, 74, 75. See Bank. 
 seal or signature of, 324 
 tests of liability, 325 
 
 bill drawn on, accepted by officer in his own name, 46, 47 
 
 officer accepted in name of company, 47 
 
 bill payable to, indorsed by officer in his own name, 128, 
 
 129 
 liability of director drawing bill or signing note for, 90 
 
 Company under Act of 1908, 
 
 full name must appear on bills and notes, 409 
 personal liability of officer signing, if it does not, 44, 410 
 what sufficient signature to charge, 411 
 bill payable to illegal, or its agent, 117 
 
432 Index. 
 
 compensatio, 280 
 
 Composition, 
 
 effect of taking, from acceptor, 251, 252 
 
 Compromise op Claim, 
 
 as consideration for bill, 93 
 
 Conditional, 
 
 bill or note, 9, 13, 35, 283, 306 
 
 acceptance, 51, 161, 162, 201. See Qualified Acceptance. 
 
 indorsement, 129 
 
 delivery of bill absolute in form, 61 
 
 payment by bill or note, 353 
 
 Conflict of Laws, 
 
 capacity of parties, 69 
 
 requisites in form,. 274 
 
 interpretation and obligations of parties, 276 
 
 old and new style date, 15, 282 
 
 vis major and ex post facto legislation, 31, 282 
 
 duty to present to case of need, 43 
 
 effect of dishonour by non-acoeptance, 161, 281 
 
 depreciated currency in place of payment, 31 
 
 sum expressed in foreign currency, 281 
 
 validity of consideration, 278 
 
 effect of forgery, 86, 278 
 
 computation of time of payment, 281 
 
 notice of dishonour, 280 
 
 protest, 280 
 
 foreign discharge, 279 
 
 damages against acceptor, 2i8 — 221, 278 
 
 drawer or indorser, 218^-221, 279 
 Statutes of Limitation, 339 
 stamps and stamp laws, 274, 275 
 negotiability of foreign securities, 364 — 368 
 foreign law how proved, 282 
 
 Confusio, 242 
 
 Consideration, 
 
 what constitutes, 93 
 antecedent debt or liability, 94 
 adequacy of, 96 
 
Index. 433 
 
 Consideration — continued. 
 
 by whom furnished and when, 97 
 
 for original bill in case of renewal, 257 
 
 pro tanto in case of pledge or lien, 99 
 
 want of, creating privity between remote parties, 111 
 
 presumption of, 109 
 
 what evidence shifts onus probandi as to, 109 
 
 holder for value, 97 
 
 holder in due course, 103 
 
 holder claiming under holder in due course, 108 
 
 accommodation parties, 101 
 
 stolen bills, 107. See Stolen Bills. 
 
 lost bills, 268 
 
 conflict of laws as to, 267 
 
 Defences arising out of: 
 
 when it may be inquired into, 15, 64, 111 — 120 
 absence of, 112 * 
 partial absence, 113 
 failure of, 114 
 partial failure, 115 
 fraud or duress, 116 
 illegality total or partial in, 117 — 120 
 unconscionable bargains, 96 
 accommodation bills, 101, 112, 225 
 Expression of: 
 
 not essential, 15 
 how expressed, 15 
 
 evidence to negative, when expressed, 16, 64 — 67 
 effect if expressed to be executory, 14 
 Liability on: 
 
 distinguished from liability on instrument, 77, 78, 227 
 
 warranty of genuineness, 224 
 discharged by holder's laches, 152, 163, 174, 357—359 
 presentment for payment to charge person liable 
 
 on, 174 
 notice of dishonour to person liable on, 192 
 effect of alteration on, 250 
 want of stamp, 401, 402 
 
 Consignments, 
 
 bill drawn against, 343. See Securities for Bills. 
 
 c. 28 
 
434 Index. 
 
 Construction, 
 
 bills and notes in general, 64 
 
 address to drawee and acceptance read together, 47 
 
 evidence of usage, when admissible, 328 
 
 irregular bills ut res magis valeat, 10, 46, 47, 90j 330 
 
 signature as principal's or agent's, 89 — 92 
 
 procuration signatures, 87, 88 
 
 authority to "sign bills, 321 
 
 agreements to renew, 258 
 
 notice of dishonour, 178 — 180 
 
 of the Act as a code, 2 
 
 See Interpretation of Terms. 
 
 Constructive Possession, 
 what it is, 5 
 
 delivery effected by change in, 5 
 giving right of action on bill -"payable to bearer, 145 
 
 Contingency, 
 
 bill or note expressed to be payable on, 13, 14, 34 — 36, 306 
 
 Contribution, 
 
 on payment by joint acceptor, 227, 229 
 among co-sureties generally, 226, 351 
 
 Co-owner. See Joint Parties. 
 
 Copy. 
 
 foreign " copy " distinguished from set, 126, 273 
 indorsement on foreign " copy," 125 
 protest on copy of lost bill, 199, 200 
 
 Corporation. See Company and Corporation. 
 
 Costs, 
 
 defending action on accommodation bill, 225 
 proceeding for, after payment, when parties sued con- 
 currently, 228 
 lien on bill for, 203, n. 
 
 Co-sureties, 
 
 right to contribution, 226 
 evidence to show that parties are, 251 
 successive indorsers may be, 253 
 discharge of one, 255 
 
 Counterclaims, 67, 116 
 
Index. 435 
 
 Coupons, 
 
 negotiability of, 284, 365 
 
 Cover fob Bill, 343, 348. See Securities for Bills. 
 
 Credit, 
 
 letter of, 206—208 
 stamp on, 397, 404 
 
 Criminal Law, 
 
 punishment of forgery, 86, 89 
 
 effect of sect. 45 of Larceny Act, 1916... 107 
 
 Cross-Acceptance, 93 
 
 Crossed Cheque or Document. See Cheque. 
 what instruments may be crossed, 297 
 different kinds of crossing, 296 
 origin and history of crossing, 296 
 who may cross, 297 
 crossing a material part, 298 
 crossing to two bankers, 298 
 duty of banker to obey crossing, 299 
 remedy to true owner, 300, 303 
 obliterated crossing, 300 
 
 protection to paying banker and drawer, 301 
 not negotiable crossing, 296, 301, 304 
 protection to collecting banker, 302 
 " per pro " and " a/c payee " cheques, 304, 305 
 
 Crown, 
 
 cannot be guilty of laches, 152 
 
 Custom or Trade, 
 
 law of bills founded on, Introd. 
 evidence of, when admissible, 328 
 novelty of, when immaterial, 329 
 judicial decision overrides, 329 
 saving for, in Act, 328 
 
 Customer, 
 
 meaning of " customer/' 304 
 
 customer and banker, 291 — 293. See Bank. 
 
 Damages (Measure of), 
 
 action by drawer against drawee for not accepting, 208 
 holder against acceptor or maker, 217 — 222 
 "28 (2) 
 
436 Index. 
 
 Damages {Measure of) — continued. 
 
 action by holder against drawer or indorser, 217 — 222 
 customer against banker dishonouring cheque, 
 
 208, 292, 293 
 accommodation party on contract of indemnity, 
 225 
 conflict of laws, 218—222, 278 
 
 Date, 
 
 insertion of, proper, but not essential, 15 
 power to holder to fill in, 35, 36, 54 
 required by foreign codes, 15 
 presumed to be true date, 36, 37 
 confirmation of, in bankruptcy, 37 
 ante-dating and post-dating, 37 
 dating on Sunday, 37 
 new and old style, 15, 40, 282 
 alteration 1 of, material, 15, 248 
 interest to be calculated from, 32 
 interest if bill undated, 32 
 
 when Statute of Limitations runs from, 337, 338 
 presumption if indorsement undated, 139 
 if acceptance undated, 50 
 See After Date — After Sight. 
 
 Days of Geace, 38, 282 
 
 Death, 
 
 Of Holder: 
 
 title to bill, 147 
 
 inchoate bill, 55, 56 
 
 bill drawn payable to deceased person, 23, 26 
 
 Statute of Limitations when intestate, 340 
 
 delay in presentment or notice of dishonour, 170, 186 
 
 acceptor becoming executor or administrator, 241 
 
 Of Drawer: 
 
 drawee's duty to accept bill, 207 
 banker's authority to pay cheques, 289 
 notice of dishonour, 186 
 
 Of Indorser: 
 
 notice of dishonour, 186 
 
 before delivery of bill to indorsee, 59, 63 
 
 Of Drawee, or Acceptor, or Maker: 
 presentment for acceptance, 157 
 payment, 168 
 
Index. 437 
 
 Death — continued . 
 
 Of Drawee, or Acceptor, or Maker — continued, 
 notice of dishonour, 188, 193 
 holder becoming executor or administrator, 241 
 indorser becoming executor, 241 
 
 See Administrator — Executor — Donatio mortis causa. 
 Debentures, 
 
 •what they are, 369 
 how far negotiable instruments, 370 
 how stamped, 398 
 Debt, 
 
 antecedent or pre-existing, as consideration, 94, 95 
 when bill is conditional or absolute payment of, 152, 
 
 353—358 
 bill or note as evidence of, 360 
 
 Declaeation of Tbust, 114, 150 
 
 Deed, 
 
 transfer of bill by, 150 
 
 Definitions, 3 — 8. See Interpretation. 
 
 Delivery, 
 
 definition of, 5 
 
 necessity for, to complete contract, 58, 311 
 
 what amounts to, 59, 60 
 
 by whom it must be made, 61 
 
 conditional, or for special purpose, 61 — 63 
 
 obtained by fraud, 62 
 
 presumption as to valid, 61 
 
 non-delivery by drawee, 159, 199 
 
 protest for non-delivery, 159, 199 
 
 negotiation of bill payable to bearer by, 121 
 
 bill payable to order without indorsement, 123 
 
 liability of transferor by, 223 
 
 of blank signature or incomplete instrument, 55, 58 
 
 Demand {Bill or Note payable on). See Presentment for 
 Payment. 
 expressed to be so payable, 33 
 payable at sight or on presentation, 33 
 no time for payment expressed, 33 
 bill accepted or indorsed after maturity is, 33 
 cheque is, 33, 283. See Cheque. 
 when deemed overdue, 139, 313 
 
438 Index. 
 
 Demand {Bill or Note payable on) — continued. 
 transfer of, when overdue, 138, 139, 313 
 presentment to charge maker, 314 
 
 drawer or indorser, 315 
 Statute of Limitations on, 337 
 interest by way of damages on, 222 
 banker paying when indorsement forged, 239 — 241 
 acceptance of, 74, 156 
 stamp on, 400, 415 
 three day bills deemed to be for stamp purppses, 400, 408 
 
 Deposit Note, 373 
 
 Destbtotion of Bill. See Lost Bill. 
 payment, when proved, 2,67, 268 
 notice of dishonour, 2.68 
 protest, 199 
 by drawee not equivalent to acceptance, 160 
 
 Detention op Bill, 
 
 by drawee, 160, 199 
 
 DlBEOTOES, 
 
 when liable on bills signed for company, 45, 46, 89 — 91 
 See Company — Principal and Agent. 
 
 Discharges, 
 
 discharge defined, 227 
 
 effects of discharge, 227 
 
 discharge of bill and of party distinguished, 227 
 
 discharge inter partes, 227 
 
 discharge when laws conflict, 279 
 
 Different kintfs: 
 
 payment in due course, 227 
 
 satisfaction other than Inoney payment, 228 
 
 payment for honour supra protest, 265 
 
 accommodation bills, 234 
 
 coincidence of right and liability, 241 
 
 confusio, 242 
 
 waiver or cancellation, 242 — 244 
 
 alterations, 245 
 
 renewal, 257 
 
 novatio, 258 
 
 discharge of surety by dealings with principal, 
 253 
 
Index. 439 
 
 Discharges — continued. 
 
 Different kinds — continued, 
 compensatio, 280 
 foreign prescription, 339 
 part payment as pro tanto discharge, 229 
 merger in judgment, 136 
 
 Discount of Bill, 100 
 
 Dishonour, 
 
 By non-acceptance: 
 
 defined, 160 
 
 consequences of, 160, 161 
 
 re-presentment after, 49 
 
 omission to give notice of, 175 
 
 negotiability and status of bill after, 140 
 
 subsequent acceptance, 49 
 
 measure of damages against drawer or indorser, 
 217 
 
 Statute of Limitations, 338 
 
 as breach of contract with drawer, 208 
 
 rights of holder against drawee, 204 — 207 
 
 effect on securities held as cover for bill, 343 — 345 
 By non-payment: 
 
 defined, 173 
 
 consequences, 173, 174 
 
 effect on securities held as cover, 343 — 345 
 By acceptor supra protest, 263 
 
 Dividend Warrant, 
 
 may be crossed as cheque, 327 
 indorsement of, 127, 331 
 saving for usages as to, 331 
 as a negotiable instrument, 373 
 
 Divorced Woman, 70 
 
 Documentary Bill, 53, 162. See Securities for Bills. 
 no warranty that documents are genuine, 114, 348 
 
 Domiciled Bill, 
 what is, 16 
 
 presentment for acceptance required, 152 
 how if it comes forward late, 153 
 presentment for payment, 167, 168> 201 
 protest for non-payment of, 198 
 domicile does not make acceptance qualified, 51 
 when addition of domicile avoids bill, 249 
 relations of banker and customer as regards, 294 
 
440 Index. 
 
 Donatio Mortis Causa, 
 
 bill or note drawn by third party held by donor, 151 
 
 donor, 151 
 cheque drawn by donor, 289 
 
 Double Insolvency, 348. See Securities for Bills. 
 
 Drawee, 
 
 defined, 9 
 
 same person or firm as drawer, 19 
 as payee, IS 
 fictitious, 19, 158, 170, 190, 191. See Fictitious Name, &c. 
 person not having capacity to contract, 19, 158, 171, 190, 
 
 '191 
 designation in bill, 9, 19 
 certainty required in address to, 20, 46, 47 
 alternative, 21 
 
 joint, 21, 52, 157, 168. See Joint Parties. 
 address to, construed with acceptance, 47, 89 — 91 
 requisites of the order to, 10—16. See Order to Drawee. 
 acceptance by, 45 — 53 
 acceptance by person who is not, 46, 47 
 
 one of several, 45, 46, 52 
 bill left for acceptance with, 159 
 revocation of acceptance by, 59, 61 
 obligation to accept or pay, 207, 292 
 damages against, for non-acceptance, 208 
 privity with holder, 204, 205 
 
 holder's right to funds or goods in hands of, 205 
 letter of credit or adyice, 206, 208 
 remedy of holder of cheque against, when drawer 
 
 discharged, 286 
 when agent of holder to give notice of dishonour, 177 
 death of, 157, 168, 188. See Death. 
 bankruptcy of. See Bankruptcy. 
 payment by, as a discharge, 227 
 
 presentment for acceptance to, 152 — 162. See Present- 
 ment for Acceptance. 
 payment to, 163 — 174. See Presentment 
 for Payment. 
 
 See Acceptor — Banker — Cheque — Payment— Dishonour 
 — Securities for Bills. 
 
 Drawee in case op need, 42 
 
Index. 441 
 
 Dbawer, 
 
 defined, 9 
 
 distinguished from maker of note, 316 
 of bill and cheque distinguished, 284 
 same person or firm as payee, 18 
 
 drawee, 19 
 joint drawers, 182. See Joint Parties. 
 signature of, 9, 11, 54. See Signature. 
 delivery of bill to payee, 58 
 fictitious person, 24, 54. See Fictitious Party. 
 forged or unauthorized signature of, 81. See Forgery. 
 right to draw, and relations with drawee, 207, 291 
 death of. See Death. 
 bankruptcy of. See Bankruptcy. 
 
 accommodation drawer, 101. See Accommodation Party. 
 capacity of, 68. See Capacity. 
 authority of. See Partner — Principal and Agent. 
 how far a surety as regards acceptor, 210, 233, 251. See 
 
 Principal and Surety. 
 relation to indorsers, 212, 251 
 payment by, as a discharge, 232 
 re-transfer to, 140 
 re-issue by, 141, 232 
 
 duty to give duplicate in case of loss, 267 
 obligation to give a set, 270 
 contract with holder, 212 
 interpretation of contract when laws conflict, 276. See 
 
 Conflict of Laws. 
 estoppels which bind as such, 212 
 measure of damages against, 218 
 Statute of Limitations as to, 338 
 lien of, as unpaid vendor, 343. And see Securities for 
 
 Bills. 
 acceptance or payment for honour of, 259 — 269 
 Sow Liability Negatived: 
 
 intention to sign different document, 323 
 
 forgery, 81 
 
 consideration negatived (including fraud, illegality), 
 
 111—117 
 transfer of property to holder negatived, 61 — 64 
 capacity to contract negatived, 68 — 74 
 non-performance of holder's duties, 152 — 200 
 discharge of bill or discharge inter partes, 111 — 258. 
 See Discharge. See also Cheque. 
 
442 Index. 
 
 Drunken Man, 70 
 
 Due Date, 
 
 how determined in general, 38 — 42 
 conflict of laws, 281 
 
 Duplicate, 
 
 right to, when bill lost, 267 
 
 right to have bill drawn in a set, 270 
 
 ; ' copy " of foreign bill, 273 
 
 Duress, 109, 116, 118 
 
 Enemy. See Wab.' 
 
 Equitable Assignment, 
 
 order amounting to, distinguished from bill, 15 
 
 negotiation of bill distinguished from, 121 
 
 bills as subject of, 150. See Transfer. 
 
 bill or cheque does not operate as, in England, 204, 347 
 
 Scottish .rule, 204 
 
 bill drawn against specific goods, 347 
 
 Equity (Court of). See Injunction — Mistake. 
 
 Equity attaching to Bill, 137 
 
 Erasure, 
 
 effect of, in general, 244, 245 
 onus probandi, as to, 245, 251 
 of crossing of cheque, 298, 300 
 
 Escrow,. 
 
 bill delivered as, 63 
 
 Estoppel, 
 
 by negligence, 85, 235, 246 
 distinguished from ratification, 85 
 person disputing his own signature, 85 
 authority to fill blanks, 54 
 authority of partner in trading firm, 78 
 infant representing himself of age, 70 
 Arising on Bill: 
 
 from drawing, 212 
 
 from accepting, 210 
 
 from indorsing, 212 
 ''• from accepting supra protest, 23, 262 
 
 from making note, 315 
 
Index. 44* 
 
 Evidence, 
 
 of usage or custom, 328 
 
 to show oral discharge, 64, 65, 242 
 
 to vary or contradict terms «f bill, 64 — 67 
 
 contemporaneous or collateral writings, 66, 67 
 
 to contradict the date, 37 
 
 date of bill in bankruptcy proceedings, 37 
 
 to show delivery was conditional, 61, 63 
 
 to supply blanks, 22, 32, 36 
 
 to identify payee when misdescribed, 22 
 
 to negative consideration, 64. See Consideration. 
 
 of notice of dishonour by admission of liability, 189 
 
 verbal notice of dishonour, 180 
 
 of waiver of notice of dishonour, 188, 189 
 
 to show relationship of principal and surety, 251 
 
 to show co-suretyship, 226, 251 
 
 to charge undisclosed principal, 77 
 
 how far bill or note evidence of debt, 360 
 
 of foreign laws, 282 
 
 estoppels. See Estoppel. 
 
 onus probandi. See Onus probandi. 
 
 amendment of Scotch law, 332 
 
 Exchange, 
 
 contract of, underlying bill, Introd. 
 rate fixed by indorsement, 29, 30 
 bill payable in foreign currency, 281 
 „ unauthorized indorsement of a rate of, 30, 248. See 
 Be-excha/nge. 
 
 Exchequer Bills and Bonds, 374 
 
 Execution, 
 
 bill taken in, 148, 386, 393 
 
 of instrument by order of Court, 393 
 
 Executor or Administrator, 
 
 when bill held by deceased vests in, 147 
 authority to fill up inchoate bill, 55 
 presentment for acceptance to, 157, 158 
 presentment for payment to, 168 
 personal liability on bill signed as, 89, 124 
 delivering bill made or indorsed by testator, 59, 62 
 not deceased's agent, 62 
 effect when acceptor becomes holder's, 241, 242 
 
44-i Index. 
 
 Executor oe Administrator — continued. 
 
 effect when holder becomes acceptor's, 241, 242 
 may indorse without personal liability, 124 
 See Death — Donatio n*ortis causa. 
 
 Ex-partners, 81 
 
 Failure of Consideration, 114, 115, 235 
 
 Past-day {public), 
 
 bill falling due on, 39, 40. See Non-business Day. 
 
 Felon, 
 
 party to bill, 69. See also Forgery — Stolen Bill. 
 
 Fictitious Name or Party, 
 
 real person using fictitious name, 75, 76 
 Fictitious Drawer: 
 
 title through, 23—26, 55 
 
 acceptor's estoppels, 210, 211 
 
 acceptor supra protest's estoppels, 262 
 
 indorser's estoppels, 213 
 Fictitious Drawee, Acceptor, or Maker: 
 
 instrument, bill, or note, 19 
 
 presentment for acceptance, 158 
 payment, 170 
 
 notice of dishonour, 190, 191 
 Fictitious Payee and Indorser: 
 
 title through, 23, 55, 212, 213 
 
 acceptor's estoppels, 210 
 
 drawer's estoppels, 212 
 
 indorser's estoppels, 213 
 
 maker of note's estoppels, 315 
 
 Fi. Fa., 
 
 writ extends to bills, 148 
 
 Finance Bells, 103 
 
 Firm. See Partner. 
 
 Fluctuating Balance, 
 
 as consideration for bill, 102 
 
 Force and Fear, 108, 109, 111 
 
Index. 446 
 
 FoBEIGN BILL OR NOTE, 
 
 defined, 17 
 
 how stamped, 391 
 
 protest of, 195. See Conflict of Laws. 
 
 damages when dishonoured, 220 
 
 Foreign Bonds to Bearer or Scrip, 
 negotiability of, 364 
 foreign government and its agents not liable on, 368 
 
 Foreign Codes and Laws, 
 
 how proved, 282 . See Conflict of Laws. 
 
 Foreign Currency, 
 
 computation of sum payable, 30, 281. See Sum Payable. 
 computation for stamp purposes, 395 
 
 Foreign Discharge, 279. See Discharge. 
 
 Foreign Government or Sovereign, 69, 368 
 
 Forgery, 
 
 negotiation restrained by injunction, 86 
 
 cancellation of bill by order of Court, 86 
 
 recovery of money paid, 235 — 239 
 
 ante-dating to defraud, 38 
 
 renewal of forged bill by mistake, 110 
 
 bill drawn against forged bill of lading, 114, 294, 348 
 
 holder presenting forged bill, 225, 239 
 
 Forged or Unauthorized Signature: 
 
 no liability on, 81 — 86 
 
 no title made through, 81 — 86 
 
 ratification, 82, 85 
 
 payment in general, 81, 82 
 
 cheque held under forged indorsement, 239, 302 
 
 wife's indorsement forged by husband, 86 
 
 party estopped from disputing his own, 85 
 
 estoppels arising on bill. See Estoppel. 
 
 agent signing "per proc," 89, 240 
 
 foreign laws, 86 
 
 conflict of laws as to, 277, 278 
 
 criminal law, 86, 89 
 Fraudulent Alteration: 
 
 general effect, 245 — 251 
 
 acceptance after, 246 
 
446 Index. 
 
 Forgery — continued. 
 
 Fraudulent Alteration — continued, 
 negotiation after, 246, 247 
 payment after, 235—239 
 
 See also Fictitious Name or Party— Crossed 
 Cheque. 
 
 Torm of Bill, 
 
 conflict of laws as to, 274 
 See Bill of Exchange. 
 
 Jorms, 
 
 inland bill, 381 
 foreign bills, 381 
 French bill, 382 
 Treasury bill, 382 
 notices of dishonour, 382 
 promissory note, 382 
 protest by householder, 333 
 protest for non-acceptance, 383 
 act of honour, 384 
 French protest, 384 
 
 -Fraud, 
 
 affecting current bill, 108, 109, 116 
 overdue bill, 136, 140 
 original bill in case of renewal, 110, 258 
 property in bill obtained by, 117 
 injunction to restrain negotiation, 116 
 evidence to shift onus probandi as to value, 109 
 Special Cases of Fraud: 
 
 ante-dating to defraud creditor, 38 
 
 cheque in favour of third party obtained by fraud, 
 
 62, 112 
 partner giving firm bill for private debt, 78 — 81, 110 
 indorsee for special purpose misappropriating bill, 62 
 blanks fraudulently filled up, 54 — 58 
 personation of payee, 82, 106, 230 
 bill accepted on faith of forged security, 114, 294 
 agent signing for principal without authority, 87 
 bill drawn and accepted to defraud third party, 319 
 as to nature of instrument signed, 323 
 See Forgery — Fictitious Name or Party. 
 
Index. 447 
 
 Feench Law {of Bills), 
 
 French Code, what and how cited, In trod, 
 weight given to, in England, Introd. 
 theory of, compared with English, Introd. 
 summary of points of difference, Introd. 
 law of 1865 as to cheques, 285 
 notes and billets a porteur, 309 
 And numerous citations. 
 
 ■Gaming ob Wagebing, 
 
 consideration for bill, 119, 120 
 
 GARNISHEE ObDEB, 
 
 effect of service on banker, 291 
 
 Genebal Acceptance, 50, 51. See Acceptance. 
 
 General Indorsement, 130 
 
 German Exchange Law, Introd. and numerous ■ citations. 
 
 Gift, 
 
 as consideration for bill, 94, 112 
 of bill made by third party, 112, 290 
 liability of donor on bill, 112, 290 
 In contemplation of Death: 
 
 bill held by donor drawn by third party, 151 
 
 bill drawn by" donor, 151 
 
 cheque drawn by donor, 290 
 
 Giving Time, 
 
 when surety on bill discharged by, 254 
 
 Good Faith, 
 
 test and definition of, 318 
 
 in holder, 103, 109 
 
 in payor, 227, 318 
 
 in person receiving payment, 237 
 
 Good Friday, 
 
 bill falling due on, 39. See Non-business Bay. 
 
 Grace, Days of, 39 
 
 guaeantoe, 
 
 presentment for payment to charge, 174 
 notice of dishonour to, 192 
 See Principal and Surety. 
 
448 Index. 
 
 Hague, 
 
 Conferences and Uniform ^Regulation. See Preface. 
 
 History. 
 
 of negotiable instruments, Introd. 
 of the Bills of Exchange Act, Introd. 
 of crossed cheques, 296 
 
 Holder, 
 
 defined, 5 
 
 holder for value, 97, 101 
 
 pledgee or holder having a lien, 99 
 
 holder in due course, 103 
 
 holder for value without notice, 105 
 
 holder claiming under holder in due course, 108 
 
 relations with drawee of unaccepted bill, 203 — 207 
 
 acceptor or maker becoming, at maturity, 241 
 
 incapacity of. See Capacity. 
 
 death of. See Death. 
 
 bankruptcy of. See Bankruptcy. 
 
 laches of, 152, 357 
 
 Duties : 
 
 presentment for acceptance, 152 — 162 
 payment, 163 — 176 
 
 after taking qualified acceptance, 162, 201' 
 
 protest of bill, 194—200 
 
 presentment when reference in need, 42, 43 
 to acceptor supra protest, 262 
 
 notice of dishonour, 174 — 194 
 
 as regards drawee or acceptor, 200 — 203 
 
 as to parts of a set, 271 
 
 as to "copies," 273 
 
 on receipt of payment, 202, 203 
 
 transfer of bill in a set, 271 
 
 to prove identity to payor, 231 
 
 title to receive payment, 225, 236 
 
 documentary bills, 114, 348 
 
 to keep bill intact, 245 
 
 effect of conflict of laws,. 280 
 Bights : 
 
 general rights and powers, 142 
 
 further negotiation of bill, 121, 140 
 
 with defective title to give good title, 142 
 
 rights under forged indorsement, 81, 86, 278 
 
 to duplicate of lost bill, 267 
 
Index. 449 
 
 Holder — continued . 
 Sights — continued . 
 
 to have bill drawn in a set, 270 
 
 option to take acceptance supra protest, 43 
 
 return of bill left for acceptance in twenty-four 
 
 hours, 159 
 option as to qualified acceptance, 43, 259 
 of one part of a set, 271—273 
 of action and proof, 142. See Action. 
 to funds in hands of drawee, 204, 286, 287 
 to securities for bill, 346 — 351 
 
 Holiday (Sank), 
 
 bill falling due on, 39. See Non-business Bay. 
 
 Honour, 
 
 act of. See Acceptance for Honour — Payment for 
 Honour. 
 
 Hours (Seasonable), 155, 156, 164, 165 
 
 Hundi, 10, n. 
 
 Husband and Wife, 
 
 Husband: 
 
 when bill payable to wife, formerly vested in, 147 
 indorsing bill payable to wife, 86, 147 
 action by, on bill payable to wife, 147 
 notice of dishonour given to wife, 180 
 bill addressed to, but accepted by wife in her own 
 name, 46,- 47 
 
 Wife: 
 
 capacity to incur liability, 69 
 
 power to transfer bill, 70 
 
 form of indorsement by, 128 
 
 indorsement forged by husband, 86 
 
 right of survivorship in bill, 147 
 
 when formerly joined with husband in action, 147 
 
 divorced woman, 70 
 
 Identity, 
 
 payment to wrong person of same name as payee, 82 
 duty of person demanding payment to prove, 231 
 personation of holder, 106 
 misdescription of holder, 22, 127 
 C. 29 
 
450 Index. 
 
 Illegal Consideration, 
 
 current bill, 108, 109, 117—120 
 
 overdue bill, 136 
 
 renewed bill, 258 
 
 illegal association, 117, 118 
 
 Immediate and Remote Parties, 61, 111 — 120 
 
 Inchoate or Incomplete Bill or Note, 54 — 58 
 
 Indemnity 
 
 on obtaining duplicate of lost bill, 267 
 action on lost bill, 267, 268 
 right of accommodation party to, 225, 351 
 Statute of Limitations, 339 
 
 Indorsee, 
 defined, 7 
 
 included in term " holder,'' 5. See Holder. 
 certainty required as to, 127, 131 
 rights, under conditional indorsement, 129 
 
 restrictive indorsement, 132 — 135 
 
 Indorsement, 
 defined, 6 
 
 delivery requisite to complete, 58. See Delivery. 
 revocation of, by. indorser, 59, 60 
 as a contract in writing, 64 
 
 distinguished from other modes of transfer, 122, 124 
 by way of receipt, 29, 408 
 how far a new drawing, 213 
 consists of two distinct contracts, 64, 68 
 transfer of bill payable to order without, 123 
 bill payable specially, 121 
 bill already payable to bearer, 214 
 overdue or dishonoured bill, 136—140 
 non -negotiable bill, 214 
 of incomplete instrument, 54 
 requisites in form, 125, 215 
 place on bill, 125, 126 
 by separate writing, 125, 150 
 on " copy " of foreign bill, 126, 273 
 bill in a set, 270 
 allonge, 125, 126 
 
 striking out, 131, 232. See also Cancellation. 
 interpretation when laws conflict, 276 
 
Index. 451 
 
 Indoesement — continued. 
 
 authorities to indorse, 321 
 
 forged or unauthorized, 81, 240, 278, 302 
 
 procuration signature, 86, 87 
 
 presumption as to time when undated, 139 
 
 presumption as to order, 129 
 
 indorsement for part amount, 126 
 
 general or in blank, 130, 145 
 
 special or full, 130, 144 
 
 conversion of blank into special, 131 
 
 blank followed by special, 27, 214 
 
 several payees or indorsees, 127 
 
 qualified, or without recourse, 43 
 
 facultative, e.g., waiving notice, 44 
 
 giving reference in need, 43 
 
 conditional, 129 
 
 restrictive, 132 
 
 for special purpose, 63, 64, 113 
 
 for collection, 132. See Collection. 
 
 when court will compel, 123, 393 
 
 when court will restrain, 86, 115, 116, 123 
 
 conflict of laws, 274, 282. See Conflict of Laws. 
 
 dividend warrants, 331 
 
 By whom: 
 
 by holder, 121 
 
 by person not the holder, 214 — 217 . 
 
 by person to whom bill is transmitted by act of 
 
 law, 147 
 by holder when misdescribed, 127 
 by holder under different name, 128 
 by agent. See Principal and Agent. 
 by person in representative capacity, 89, 124 
 by partner. See Partner. 
 by bankrupt. See Bankrupt. 
 To whom: 
 
 to party liable on bill, 140, 241 
 
 to prior holder, 140, 232 
 
 to incapacitated person. See Capacity. 
 
 Indokseb, 
 
 defined, 7, 214 
 
 resembles a new drawer, 213 
 
 quasi-indorser, or giver of " aval," 2141 — 217 
 
 29 (2) 
 
452 Index. 
 
 Indorses — continued. 
 
 revocation of indorsement by, 59, 60 
 
 contract of, severable from transfer, 64, 214, 215 
 
 same person or firm as payor, 191 
 
 capacity of. See Capacity. 
 
 fictitious. See Fictitious Party. 
 
 death, of. See Death. 
 
 who liable as, 214 
 
 contract with holder, 213 
 
 estoppels which bind, 213 
 
 measure of damages against, 217 — 222, 278 
 
 effect of payment by, 232 
 
 how far surety for drawer and acceptor, 209, 210, 251 
 
 relations of successive, inter se, 66, 213, 226 
 
 rights to securities for bill, when compelled to pay, 256, 
 
 351 
 accommodation indorser, 101. See Accommodation Bill. 
 How Liability Negatived : 
 
 by express terms, 43, 124 
 
 conditional indorsement, condition unfulfilled, 129, 
 130 
 
 restrictive indorsement, 132 
 
 re-transfer to prior party, 140, 141 , 
 
 intention to sign a different document, 323 
 
 forgery, 81 — 86. See Forgery. 
 
 consideration negatived (including fraud, illegality). 
 See Consideration. 
 
 transfer of property to holder negatived, 58 — 62 
 
 capacity to contract negatived, 68. See Capacity. 
 
 non-performance of holder's duties, 152 — 203 
 
 jus tertii, 62—64, 112 
 
 discharge of bill or discharge inter partes, 227 — 258. 
 See Discharges. 
 Infant, 
 
 capacity to incur liability, 69, 70, 71 
 
 transfer, 70, 71 
 agent, 71 
 
 Informal Bill or Note, 
 
 incomplete or inchoate, 54 — 58 
 ambiguous, may be treated as note, 10, 19 
 rule of construction, 10, 330 
 when valid as equitable assignment, 14 
 agreement, 10, 307 
 
Index. 453 
 
 Initials, 
 
 sufficiency of signature by, 322 
 Injunction, 
 
 to restrain negotiation, 86 
 
 for bill to be given up and cancelled, 86, 115, 116 
 
 to compel indorsement, 124 
 
 Inland Bill or Note, 
 defined, 17 
 
 presumption that bill is, 17, 311 
 interpretation when indorsed abroad, 276 
 noting or protest of, 194 
 damages on, 217, 316. See Damages. 
 inland note, 194, 311 
 
 Instalments, 
 
 bill payable by, 29, 316 
 
 days of grace on bill payable by, 38 
 
 Interest, 
 
 Interest Proper: 
 
 on what bills, 2>9 
 from what date it runs, 32 
 effect of altering or inserting a rate, 248 
 excluded for stamp purposes, 403 
 As Damages: 
 
 how computed against acceptor or maker, 218, 220 
 drawer or indorser, 218, 220 
 production of bill at trial when claimed, 219 
 when withheld, 222 
 conflict of laws as to, 219, 278 
 
 Interpretation, 
 
 of bill as contract in writing, 64 
 of bill by law merchant, 328. See Construction. 
 of bill when laws conflict. See Conflict of Laws. 
 Particular Terms: 
 
 " acceptance," 3, 45 
 
 "accommodation bill and party," 101, 102 
 
 " account payee," 305 • 
 
 " action," 3 
 
 "after sight," 41, 42 
 
 " at sight," 33 
 
 "aval," 216 
 
 "banker," 3, 75, 396 
 
454 
 
 Indkx. 
 
 Interpretation — continued. 
 
 Particular Terms — continued, 
 "banker's lien," 100 
 "bank note," 319, 397 
 " bankrupt," 4 
 " bearer," 4 
 
 " bill " or " bill of exchange," 5, 9, 397 
 "British Islands," 17 
 " buying " a bill, 98 
 "cheque," 283 
 "consideration," 93, 97, 99 
 "customer," 304 
 "delivery," 5 
 "discount," 100 
 "dishonour," 160, 173 
 to " domicile " a bill, 16 
 "equity attaching to bill," 137 
 "escrow," 63 
 "finance bill," 103 
 "holder," 5 
 
 "holder for value," 97, 99 
 "holder in due course," 103 
 " immediate parties," 63, 64 
 " indorsee," 7 
 "indorsement," 6, 214 
 "indorser," 7, 213, 214 
 "issue," 7 
 "laches,"- 152, 357 
 "lien," 99, 100 
 "month," 42 
 " on presentation," 33 
 "payment," 228 
 "payment in due course," 227 
 " pay without acceptance," 153 
 "pay C," 28 
 
 "pay C. only," 26, 27, 132 
 "pay to order of C," 28, 29 
 " pay to order of indorser," 22 
 "person," 8 
 
 "promissory note," 306, 398 
 "re-draft," 221 
 "re-exchange," 220, 221 
 * "remitter," 98 
 
 "remote parties," 63, 64, 111 
 
Index. 455 
 
 Intebpbetation — continued. 
 
 Particular Terms — continued, 
 to "retire" a bill, 233 
 " retour sans frais," 45 
 "sale" of bill, 98 
 "sans recours," 43 
 "third account," 10, 259 
 "transferor by delivery," 222 
 "usance" or "half-usance," 41 
 "value," 8, 93 
 " value received," 15 
 "value in account with X.," 133 
 "without grace," 39 
 "without recourse," 43, 44 
 "writing," 8 
 
 IOU, 
 
 nature and effect of, 319 
 
 Ireland, 
 
 Act applies to, 1 
 Bank Holidays in, 392 
 Bank of Ireland, 331 
 
 iBBEGrjLAEITY, 
 
 patent on bill, 106, 245, 251. See also Informal Bill. 
 
 in indorsement, 127 
 
 in presentment, 153, 158, 169 
 
 Isle op Man, 1, 17 
 
 Issue, 
 
 when bill deemed to be issued, 7 
 presumed to coincide with date of bill, 36, 37 
 of bill on Sunday, 37 
 alteration before or after, 247 
 
 Joint and Seveeal Note, 311. See Promissory Note. 
 
 Joint Paeties, 
 
 Joint Acceptor or Maker: 
 payment by, 229 
 contribution among, 227, 241, n. 
 acceptance must be joint, 21 
 when note construed as joint, 312 
 
456 Index. 
 
 Joint Parties — continued. 
 Joint Drawee: 
 
 presentment for acceptance to, 157 
 
 presentment for payment to, 168 
 
 acceptance by one, 52. See Qualified Acceptance. 
 
 notice of acceptance by one, 162 
 Joint Drawer or Indorser: 
 
 indorsement by, 127 
 
 notice of dishonour to, 182 
 
 co-sureties. See Principal and Surety. 
 Joint Holder or Owner: i 
 
 how to indorse, 127 
 
 action on bill payable specially, 144 
 
 to bearer, 144, 145 
 
 Joint Stock Company. See Company. 
 
 Jus Terth, 
 
 right of party liable to set up, 62, 63, 112, 113 
 when payor bound to set up, 230, 231 
 
 Knowledge, 
 
 how far equivalent to notice, 105 
 not in case of notice of dishonour, 175 
 
 Laches, 152, 357, 358 
 
 Language, 
 
 bill may be in any, 10 
 
 Laeceny Act, 1916, s. 45... 107 
 
 Law Merchant, 
 
 bills interpreted by, 328 
 saving in Apt for, 328 
 
 Legal Eepresentative, 
 
 liability if he signs bill, 89 
 
 may indorse without recourse, 121 
 
 vesting of bill in, 147 
 
 Legal Tender, 11, 352 
 
 Letter, 
 
 of advice, 208 
 
 of credit, 206 
 
 sufficiency of address containing notice of dishonour, 177 
 
Index. 457 
 
 LbX, 
 
 domicilii, 69 
 loci contractus, 69, 277 
 loci solutionis, 277 
 fori, 339 
 
 See Conflict of Laws. 
 
 Liability, 
 
 as consideration for bill, 94 
 
 of parties to bill. See Acceptor, Drawer, &c. 
 
 Lies, 
 
 as consideration for bill, 99 — 101 
 
 rights and duties of holder having, 99, 100 
 
 of banker or bill broker, 100, 101 
 
 bankruptcy of holder having, 148 
 
 on bill for costs, 228, 234 
 
 on bill paid by drawer or indorser, 233, 234 
 
 of banker on paid cheque till account settled, 293 
 
 Limitations (Statute of), 
 
 general rule in action on bill, 336 
 
 how time computed as to acceptor or maker, 337 
 
 drawer or indorser, 338 
 causes of action collateral to 'bill, 335 
 how statute defeated, 340 
 foreign laws, 339 
 conflict of laws, 282, 339 
 debt debarred by, as consideration, 93 
 
 Liquidation op Company, 
 
 powers of directors cease, 73 
 signature of liquidators, 325 
 
 Loan Society Notes, 308 
 
 Locus regit Actum, 275, 281 
 
 Lost Bill, 
 
 right to duplicate, 267 
 
 protest on copy, 199, 200 
 
 presentment for payment of copy, 165, 268 
 
 notice of dishonour, 187 
 
 payment where destruction proved, 268 
 
 action on, 267, 268 
 
 title of, or through, finder, 6, 145 
 
 loss owing to war, 414 
 
458 Index. 
 
 Lunatic, 
 
 capacity of, 70 
 
 authority of banker to, pay cheque of, 294 
 
 Maker (of Note), 
 defined, 306, 311 
 
 signature of, 306. See Signature. 
 distinguished from drawer of bill, 316 
 compared and contrasted with acceptor^ 13, 316, 317 
 contract with holder, 315 
 correspondence with acceptor, 317 
 alternative maker, 307 
 joint and several makers, 311 
 estoppels which bind, 315 
 payment by, 227, 316 
 damages against, 217, 316 
 Statute of Limitations, as to, 337 
 signing as surety for co-maker, 251 — 255 
 same person or firm as payee, 310 
 when drawer of bill may be treated as, 10, 19, 
 presentment for payment to charge, 314 
 notioe of dishonour to, 192, 202 
 
 See Promissory Note — Acceptor — Capacity. 
 
 Marginal Notes or Receipts (of Banker), 98 
 
 Mark, 
 
 sufficiency of signature by, 322 
 
 Marked Cheque, 285 
 
 Married Woman, 69, 147. See Husband and Wife. 
 
 Master op Ship, 
 
 drawing bill for necessaries, 92 
 notice of dishonour, 186 
 
 Maturity, 
 
 of bill, how computed, 38—42, 281, 282 
 
 acceptance after, 33 
 
 negotiation after, 33, 136. See Overdue Bill. 
 
 payment by acceptor before; 231 
 
 action on bill before, 160, 173 
 
 Measure op Damages, 217. See Damages. 
 
 Merger, 136, 241 
 
Index. 45$* 
 
 Minor, 68, 70. See Infant. 
 
 Misdescription or Misspelling, 
 
 of bill in notice of dishonour, 180 
 
 in payee's name, 21, 22, 127 
 
 in indorsement, 80, 127 
 
 in designation of drawee, 20, 45 
 
 Mistake, 
 
 corrected after issue of bill, 247 
 
 power of Court to rectify instrument, 216 
 
 cancellation of signature by, 245 
 
 Recovery by Payor of Money paid by mistake 1 : 
 
 from person who received it mala, fide, 236 — 239 
 
 bond fide, 236—239 
 from correspondent or customer, 235, 294 
 Recovery by True Owner, 85, 239, 302 
 
 Money, 
 
 instruments not payable in, 11, 306, 310 
 acceptance to pay otherwise than in, 48 
 note giving option to holder, 307, 308, 310 
 payable in foreign money, 281 
 See Sum Payable. 
 
 Moneylenders, 4, 96 
 
 Month, 
 
 interpretation of, 42 
 
 Need (Case of), 42. See Case of Need. 
 
 Negligence, 
 
 estoppel by, 85, 236 
 
 compatible with bona fides in taking bill, 318 
 delay in presentment or notice caused by, 159, 169 
 recovery of money paid by, 236 — 239 
 liability of collecting agent for, 153, 166 
 principal responsible for agent's, 166, 288 
 bailee or pledgee responsible for, 100, n., 166 
 of banker in paying cheque, 240, 300 — 305 
 responsibility of agent for sub-agent, 166 
 
 Negotiability, 
 
 in what it consists, 122 
 
 what bills originally negotiable, 27 — 29 
 
469 Index. 
 
 Negotiability. — continued. 
 
 to what extent bill negotiable, 135 
 restrained by indorsement, 131, 133 
 conferred by custom, 122, 362 
 by statute, 364, 373, 374 
 conflict of laws, 276, 364, 378 
 See also Negotiation. 
 
 Negotiable Instruments or Securities, 
 origin and history of, Introd. 
 Other than Bills, Notes or Cheques, 362 — 380 
 
 tests of negotiability, 362 
 
 bank notes, 363 
 
 bank post bills, 364 
 
 foreign bonds to bearer, 365 
 
 circular notes, 368 
 
 debentures, 369 
 
 deposit notes, 373 
 
 dividend warrants, 373 
 
 exchequer bills, 374 
 
 exchequer bonds, 374 
 
 letter of credit, 206 
 
 pay and pension warrants, 375 
 
 post office and postal orders, 375 
 
 scrip for bonds or shares, 376 
 
 share certificates and transfers, 376 
 
 treasury bills, 379 
 
 treasury notes, 379 
 
 warranty of title and genuineness, 380 
 action on lost, 388 
 issued by foreign government, 368 
 
 Negotiation, 
 defined, 121 
 
 distinguished from other modes of transfer, 122 
 what bills negotiable, 26 — 28 
 modes of negotiation, 122 
 
 by whom bill may be negotiated, 121, 124, 127, 130 
 to whom bill may be negotiated, 126, 129, 132 
 re-transfer to party liable; 140 
 time of negotiation, 135, 140 
 rights acquired by, 142 
 when restrained by injunction, 86, 115, 116 
 See Indorsement — Delivery. 
 
Index. 4bl 
 
 New Style or Gregorian Calendar, 15, 282 
 
 New York, 
 
 Negotiable Instruments Law (1897), Preface, and 
 numerous citations. 
 
 No Effects, 
 
 as excusing presentment for payment, 171 
 as excusing notice of dishonour, 188, 190 
 
 Non- acceptance, 160. See Dishonour — Notice of Dishonour. 
 
 Non-business Day, 
 
 what is, or is not, 325 
 
 bill falling due on, 39 
 
 when excluded in computing time, 325 
 
 Bank Holiday Acts, 388, 392 
 
 Non- negotiable Bill, 26, 27, 214. See Promissory Note. 
 
 Non-payment. See Dishonour — Notice of Dishonour. 
 
 " Not Negotiable," 
 
 cheque may be specially so crossed, 296, 301 
 effect of crossing cheque with words, 301, 304 
 
 Notarial Act, 260, 264, 405 
 
 Notary Public, 
 
 when intervention necessary, 194, 197, 199, 260, 264 
 (who may act as, 199 
 seal of, 199 
 
 responsibility of collecting agent who employs, 166 
 notice of dishonour given by clerk of, 181 
 presentment of bill by clerk of, 199 
 protest by householder when notary not accessible, 327, 
 333 
 
 Note, 5. See Promissory Note—Banic Note. 
 
 Notice {of Fraud or Illegality affecting Bill), 
 what constitutes, 105, 318 — 320 
 effect of, to principal, 106 
 effect of, to agent, 106 
 effect when good title intervenes, 108, 137 
 onus probandi as to, 109 
 creating privity between remote parties, 112, 115 
 
462 Index. 
 
 NOTICE OP DlSHONOUB, 
 
 To charge Drawer or Indorsers, 174 — 192 
 defined, 175 
 
 why knowledge not equivalent to, 175 
 when necessary, 174 
 consequence of omission to give, 174 
 by whom given, 176 — 178 
 in what manner, 178 
 for whose benefit notice enures, 178 
 within what time by holder, 182, 183 
 
 by party receiving notice, 185 
 to remote parties, 184 
 time for transmitting through agents, 184, 185 
 to whom given in general, 181 
 
 how, if party to be charged is dead or bankrupt, 181 
 several drawers or indorsers, 181 
 verbal or written, 178 
 return of dishonoured bill, 180 
 requisites in form, 180 
 misdescription in, 180 
 construction of written, 179 
 miscarriage of post, 185, 186 
 excuses for non-notice, 187 — 192 
 
 delay, 186 
 bill dishonoured by non-acceptance and negotiated, 
 
 175 
 cheque, 285 
 
 non-negotiable bill, 214 
 bill indorsed when overdue, 33 
 admission of liability as evidence of, 189 
 subrogation of payor supra protest for holder, 185, 
 
 265 
 conflict of laws, 280 
 To charge other Parties*; 
 
 acceptor or maker, 192, 202 
 
 guarantor, 192 
 
 person liable on consideration, 193 
 
 Notice of Pbotest, 176, 184 
 
 Notice of Qualified. Acceptance, 162 
 
 Noting, 
 
 defined, 194 
 
 how effected and objects of, 194 
 
Index. 463 
 
 Noting — continued. 
 
 extension of time for, 196, 414 
 for what purposes equivalent to protest, 196, 326 
 expenses of, when recoverable, 194, 218 
 protest relates back to, 326 
 
 Novatio, 258 
 
 Old Style Date, 
 
 in what countries used, and effect, 15, 282 
 
 Onus Probandi and Presumptions, 
 bill inland or foreign, 17 
 correctness of date, 36, 37 
 of effective delivery, 61 
 value and bond fides, 109 
 holder is holder in due course, 109, 110 
 time of negotiation, 139 
 order of indorsements, 129 
 time of undated acceptance, 50 
 alteration or erasure, 251 
 lost notice of dishonour, 177 
 value when bill payable at drawer's house, 190 
 relationship of principal and surety, 251 
 authority to fill blanks, 54 
 authority of partner in trading firm, 7S, 79 
 
 in non-trading firm, 79 — 81 
 cancellation of adhesive stamp, 399, 400 
 bill alleged to be collateral security, 101 
 that bill is conditional payment, 353 
 
 Okal Evidence. See Evidence. 
 
 Order (Bill payable to), 
 
 what bills are, 28, 29, 132 
 
 effect of omitting words " or order,'' 28, 130, 133 
 
 how negotiated, 121 
 
 transfer without indorsement, 123, 150 
 
 action on, 144 
 
 Okdeb to Drawee, 9 — 16 
 form of words, 10 — 12 
 conditional or contingent, 13 — 15 
 imperative or precative, 12 
 
 requiring payment out of particular fund, 13, 14 
 requiring something beyond payment of money, 11 
 effect of credit or letter of advice, 206, 208 
 
464 Index. 
 
 Overdraft, 
 
 when customer may overdraw, 293 
 
 Overdue Bill, 
 
 negotiability of, 136—139 
 
 equities which attach to, 137 — 139 
 
 liability of indorser of, 33, 34 
 
 notice of dishonour to indorser of, 33, 34 
 
 acceptance of, 33, 49 
 
 status of bill dishonoured by non-acceptance, 140, 175 
 
 presumption as to time of transfer, 139, 140 
 
 When deemed overdue: 
 
 bill payable on demand, 139 
 
 note payable on demand, 313 
 
 cheque, 139 
 
 other bills and notes, 138 
 
 Owner {True), 
 
 distinguished from holder, 6 
 
 right of, if cheque paid contrary to crossing, 299, 301, 
 
 302 
 right to follow prooeeds of bill, 82, 239, 302 
 
 Parol Evidence, 64. See Evidence— Construction. 
 
 Part or Partial, 
 
 absence of consideration, 112, 115, 117 
 
 acceptance, 51. See Qualified Acceptance. 
 
 acceptance for honour, 260 
 
 failure of consideration, 115, 117 
 
 indorsement, 126 
 
 ownership or interest. See Joint Parties. 
 
 payment by acceptor, 229 
 
 by drawer or indorser, 233 
 
 Particular Fund, 
 
 bill payable out of, 13, 14 
 
 Parties, 
 
 necessary to bill of exchange, 9, 19 
 
 promissory note, 306, 310 
 capacity of. See Capacity. 
 authority of. See Partner — Principal and Agent. 
 
 Partner and Partnership, 
 
 " person " includes " firm," 8 
 
 trading and non-trading firms, 78, 79 
 
 what, if drawer and drawee same firm, 19 
 
Index. 466 
 
 Partner and Partnership — continued. 
 Authority of Partner: 
 
 to bind co-partners by bill, 78, 79 
 to transfer firm bills, 80 
 
 bill after firm dissolved, 81 
 to draw post-dated cheque, 321 
 Liability of Firm: 
 
 firm signature essential to liability, 75, 76 
 firm style varied without consent, 76, 80 
 
 by consent, 76 
 firm having different names, 76 
 
 no firm style, 76, n. 
 bill addressed to firm accepted in partner's private 
 
 name, 45 
 bill addressed to one partner accepted in firm name, 
 45 
 in wrong style accepted in right, 46 
 two firms of same name with common partner, 78 
 firm, and one partner having same name, 78, 79 
 partner giving bill for private debt, 79, 108 
 bill payable to firm under wrong style and so 
 
 indorsed, 81, 128 
 two bills accepted for same debt, 79 
 unaccepted bill drawn by partner on firm, 77 
 Liability of Individual Partner: 
 what firm signature includes, 76 
 dormant or secret, 78 
 limited partner, 78, n. 
 
 person holding himself out as partner, 78, 81 
 retired partner, 78, 81 
 ex-partner when firm dissolved, 81 
 varying firm style without co-partner's consent, 76 
 bill addressed to firm acoepted in partner's individual 
 name, 45, 46 
 one partner, acoepted in firm name, 
 45 
 
 Pabts of a Set, 2,70. See Set. 
 Pass Book, 293. 
 
 Patent Irregularity {on Bill). See Irregularity. 
 c. 30 
 
466 Index. 
 
 Payee, 
 
 defined, 9 
 
 included in term "holder,'' 5, 6 
 
 same person or firm as drawer, 18 
 
 drawee, 18 
 
 maker, 310 
 when necessary to designate, 21, 306, 310 
 certainty- required in designation, 21 
 blank for name of, 22, 54—58 
 fictitious, 23. See Fictitious Parties. 
 alternative, 22 
 
 holder of office for time being, 22 
 several payees, 22, 127 
 misdescription of, 21, 22, 127 
 deceased person, 23, 24, 147 
 when payee must indorse, 12.1 
 indorsement by, where misdescribed, 127 
 See Holder — Indorsement — Payment. 
 
 Payment {by Bill or Note), 
 
 general rule as to payment, 352 
 
 bill or note held as collateral security, 353 
 
 operation of bill or note as conditional payment, 353 
 
 when absolute payment, 358 
 
 how if creditor holds some higher security, 355 
 
 bill given for rent, 356 
 
 effect of holder's laches, 357, 358 
 
 bill or note for less sum than the debt, 359 > 
 
 cheque sent in settlement, but received on account, 359 
 
 bill or note as evidence of debt, 360 
 
 effect of sending through Post Office, 361 
 
 Payment (o/ Bill or Note), 
 meaning of term, 228 
 when deemed complete, 228 
 
 in due course, what and effect, 227, 234. ' See Discharge. 
 presumption of, after twenty years, 228 
 as a fraudulent preference, 255 
 part payment, 229, 233 
 
 accommodation bill, 2,34. See Accommodation Bill. 
 bill in a set, 272 
 crossed cheques, 299 — 305 
 a/c payee cheques, 305 
 
Index. 467 
 
 Payment {of Bill or Note) — continued. 
 forged bill or note, 81, 235 
 against forged bill of lading, 114, 294, 348 
 cheque or other demand draft held under forged 
 
 indorsement, 239 
 presentment for. See Presentment for Payment — Money. 
 sum payable, 29 — 32. See Sum Payable. 
 non-payment. See Dishonour. 
 By whom: 
 
 drawee, acceptor, or maker, 227 
 
 drawer or indorser, 232 
 
 person not party to bill, 229, 230 
 
 accommodation bill by person accommodated, 234 
 
 acceptor for honour, 263, 264. See Payment for 
 Honour. 
 Time : 
 
 before maturity, 231 
 
 at or after maturity, 227, 231 
 
 computation of time, 38 — 42, 281, 282 
 To whom: 
 
 holder, 227, 230 
 
 holder with defective title, 230 
 
 wrong person of same name as payee, 230 
 
 person claiming under a forgery, 81 — 86, 234 
 
 bankrupt or trustee, 148 
 
 to sheriff under an execution, 148 
 
 executor or administrator, 147 
 
 duty of payee to prove identity, 231 
 Recovery of Money paid by Mistake: 
 
 from person who received it mala fide, 234 — 239 
 
 bond fide, 2:34—239 
 
 from correspondent or customer, 235 
 
 Payment fob Honoue supea Protest, 263 — 266 
 what bills, 263 
 effect on bill, 285 
 requisite formalities, 284 
 who may pay, 283, 264 
 holder's obligation to receive, 266 
 rights and duties of payor, 265, 266 
 
 Penalty, 
 
 clergymen trading, 69 
 
 issue of unstamped bank-note, 397 
 
 refusing receipt, 406 
 
 30 (2) 
 
468 Index. 
 
 Penalty — continued . 
 
 not cancelling adhesive stamp, 396 
 
 not truly setting out facts affecting stamp, 394 
 
 negotiating or paying bill not duly stamped, 401 
 
 issuing bill or note under' 20s. in Scotland, 12 
 
 not inserting proper signature of limited company, 410 
 
 Pencil Signature, 322 
 
 Pee Peoo. Signatures, 86, 304 
 
 Personation of Payee, 106, 230, 231, 240 
 
 Place, 
 
 Of Drawing or Making: 
 indication of, 15 
 note under £20 payable to bearer, 308 
 
 Of Payment: 
 
 indication of, 15 
 
 alternative of, 16 
 
 alteration or insertion of, without authority, 248 
 
 due date determined by law of, 281, 282 
 
 acceptance restricted as to, 51. See Qualified 
 
 Acceptance. 
 note under £5 payable to bearer, 308 
 indicated in body of note, 314, 315 
 indicated by memorandum on note, 315 
 presentment for payment of bill, where none indi- 
 cated, 166 
 
 Pledge, 
 
 as consideration for bill, 99, 100 
 rights and duties of pledgee, 100, 166 
 
 Possession, v 
 
 actual and constructive, 5 
 what change of, constitutes delivery, 5, 60 — 64 
 necessity for holder having, 6, 144, 145 
 bearer or holder and mere possessor distinguished, 6, 124 
 what sufficient to support action on bill payable to- 
 bearer, 144, 145 
 
 Post-dating, 
 
 bill, cheque, or note, 37, 107, 321, 395 
 See Cheque. 
 
Index. 469 
 
 Post Office, 
 
 agent of sender or recipient, 59, 61 
 property in half-note sent through, 60 
 notice of dishonour sent through, 177, 185, 187 
 presentment for acceptance through, 157, 158 
 
 payment through, 169 
 miscarriage of, 185, 187 
 payment through, 361 
 
 Post Office Order ok Postal Order, 375 
 
 Pre-existing Debt or Liability, 
 as consideration for bill, 94 
 
 Premature, 
 
 presentment for payment, 163, n. 
 payment or other discharge, 231 
 
 Prescription, 
 
 foreign laws as to, 280, 340. See Limitations. 
 
 Presentment' for Acceptance, 
 when necessary, 152 
 when optional, 152 
 when prohibited, 153 
 
 consequence of omission when necessary, 159, 160 
 object of, when optional, 153 
 duty of agent, 153 
 
 time for, when bill payable after sight, 154 
 domiciled bill coming forward late, 153. See Domiciled 
 
 Bill. 
 time in other cases, 156 
 by whom to be made, 155 
 to whom and when, 155, 156 
 day and hour, 156 
 several drawees, 157 
 if drawee dead or bankrupt, 157 
 when through post office, 157, 158 
 how long drawee may take to consider, 159 
 excuses for non-presentment, 158 
 informality, when excused, 153, 158 
 dishonour, and its consequences, 159, 160 
 qualified acceptances, 161 
 
 compared with presentment for payment, 158 
 when merged in presentment for payment, 156, 157 
 re-presentment after dishonour, 49, 50 
 conflict of laws, 280 
 no warranty of title by person presenting, 114, 156, 203 
 
470 Index. 
 
 Presentment fob Payment, 
 
 whether person presenting bound to prove identity, 231 
 whether person presenting warrants title, 165, 225 
 forged documents attached to bill, 114, 2t03, 294, 348 
 duty of collecting agent, 166 
 protection to banker presenting crossed cheque for 
 
 customer, 299—305 
 foreign law, and conflict of laws, 280 
 To charge Drawer or Indorsers, 163 — 174 
 
 consequence of omission, 163, 286, 315 
 
 contrasted with presentment for acceptance, 158 
 
 at what time bill payable on demand, 164 
 
 note payable on demand, 312, 313 
 
 cheque, 164, 286 
 
 other bills and notes, 163 
 
 on what days, 165 
 
 at what hours, 165 
 
 by whom, 165 
 
 production of bill, 202 
 
 at what place, 166, 169 
 
 to whom, 165 
 
 several payors, 168 
 
 payor dead, 168 
 
 through post office, 169 
 
 excuses for non-presentment, 170 — 173 
 
 excuses for delay, 160 
 
 dishonour and its consequences, 173. See Dis- 
 honour. 
 
 duty of collecting agent, 166. See also Cheque. 
 To charge other Parties: 
 
 acceptor, 204, 205 
 
 maker of note, 201, 316 
 
 guarantor, 174 
 
 person liable on consideration, 174 
 To Acceptor for Honour or Case of Need, 281 — 264. See 
 
 Acceptance for Honour. 
 Grossed Cheques, 296 — 305 
 
 Presumptions. See Onus probcmdi — Estoppel. 
 
 Pbinoipal and Agent, 
 
 Liability of Principal to Holden: 
 
 on instrument when un-named, 75, 77 
 on consideration when un-named, 77, 78 
 
Index. 471 
 
 Pbinoipal and Agent— continued. 
 
 Liability of Principal to Solder — continued. 
 
 trading in nam© of agent, 77 
 
 name signed by agent, 75, 76 
 
 procuration signature, 86, 87 
 
 draft on principal accepted by agent in his own 
 name, 45, 46 
 
 bill addressed to agent accepted by principal, 46 
 
 construction of signature, 47, 88 
 
 forged signature, 81 — 86 
 
 ratification of forged or unauthorized signature, 
 82, 85 
 
 estopped from disputing agent's authority, 77, 85 
 Liability of Agent' to Holder: , 
 
 agent known to be such signing his own name, 75, 76 
 
 procuration signature, 86 
 
 non-existing principal, 89 
 
 effect of representation of authority, 89 
 
 signature as agent or representative, 89, 90, 124 
 
 bill drawn on principal accepted by agent in his own 
 name, 45, 46 
 agent accepted for principal, 45 
 Liability of Principal to Agent,: 
 
 indemnity to agent signing in his own name, 339 
 
 part owner indorsing to co-owner for collection, 
 62, 63 
 Liability of Agent to Principal: 
 
 indorsing bill to principal, 113 
 
 collecting agent for negligence, 153, 166 
 
 employment of sub-agent, 166 
 
 authority to take cheque or bill in payment, 352 
 Existence and Effect of Agency: 
 
 infant agent, 71 
 
 wife indorsing as husband's agent, 47, 69 
 
 evidence of agency, 321, 322 
 
 effect of notice to principal or agent, 106 
 
 bill held by bankrupt agent, 148 
 
 indorsee under restrictive indorsement, 132 
 
 drawer or indorser paying bill as acceptor's agent, 
 229, 232 
 
 action or proof by agent, 143 
 
 drawee agent of holder to give notice of dishonour, 
 177 
 
472 Index. 
 
 Principal and Agent — continued. 
 
 Existence and Effect of Agency — continued. 
 
 notice of dishonour given by agent in his own name, 
 
 176 \ 
 
 agents to receive notice of dishonour, 181 
 time for transmitting notice of dishonour through 
 
 agent, 183, 288 
 when holder deemed agent of previous holder, 112 
 executor not agent of testator, 62. See Authority — 
 
 Branch Banks — Partner. 
 
 Principal and Surety, 
 
 discharge of surety by certain dealings with principal, 
 251—257 
 
 prima fade relationship of parties to bill inter se, 251 
 
 evidence to show real relationship, 63, 65, 251 
 
 history of law of, as to bills, 253 
 
 principal subsequently becoming surety, 254 
 
 what amounts to giving time, 254 
 
 reservation of rights when time given, 251, 252, 255 
 
 what amounts to discharge of principal, 255 
 
 discharge of co-surety, 255 . 
 
 severable contract of suretyship, 257 
 
 effect of renewal of bill, 257 
 
 rights of surety compelled to pay to indemnity, 226 
 
 to securities, 256, 351. 
 See Accommodation 
 Bill. 
 Privity, 
 
 between holder and drawee, 205, 286, 346, 347 
 
 how created between remote parties, 112, 116, 143 
 
 Prize Law, 
 
 effect on securities for bills, 339 
 
 Procuration, 
 
 effect of signature "per proc," 86 — 89, 304 
 
 Production, 
 
 of bill when payment demanded, 202 
 
 at trial when interest claimed, 219 
 for proof or dividend in bankruptcy, 413 
 
 Promissory Note, 
 denned, 306 
 
 defined for stamp purposes, 398 
 how far provisions as to " bills " apply to, 316 
 
Index. 47 -i 
 
 Promissory Note — continued. 
 
 compared with bill of exchange, 13, 316 
 when bill of exchange may be treated as, 10, 19 
 distinguished from bank-note, 309 
 inland or foreign, 311 
 foreign law, 309, 310 
 necessary parties, 306, 310 
 maker and payee same person, 310 
 ■ delivery to payee to give effect to, 311.. See Delivery. 
 when deemed to be issued, 7 
 form of words, 307 
 conditional or conting3nt, 306 
 containing pledge of security, 310 
 expressed in alternative, 307 
 under £20... 308 
 under £5... 308 
 under 20s. in Scotland, 12 
 
 of corporation, under seal without signature, 324, 337 
 of company under Companies Acts, 410, 411 
 construction whan signed by agent, 90 
 meaning of " after sight " in, 42 
 negotiable by statute, 336, 337 
 presentment to charge maker, 314 
 
 indorser, 315 
 notice of dishonour to maker unnecessary, 202 
 protest of, when unnecessary, 311 
 expenses of noting, 218 
 payment supra protest, 264 
 maker's contract with holder, 315 
 estoppels which bind maker, 315 
 Stamp Laws, 398, 400 
 
 Payable on demand: 
 when so deemed, 33 
 effect as continuing security, 312, 313 
 presentment to charge maker of, 313 
 time for presenting to charge indorser, 312, 313 
 when deemed overdue, 313 
 damages against maker, 217, 222 
 Statute of Limitations as to maker, 337 
 restrictions on issue by banker, 74 
 
 Joint and Several Note: 
 
 when construed as, 311, 312 
 
 authority of partner to bind co-partners by, 312 
 
474 Index. 
 
 Pbomissoey Noi;e — continued. 
 
 Joint and Several Note — continued. 
 
 maker added to, after issue, 248, 249 
 alteration by erasing maker's name, 249 
 alteration by converting joint note into, 249 
 maker, who is payee, suing co-maker, 310 
 payment by one maker as a discharge, 312 
 giving time to maker when co-maker a surety, 252 
 
 Nbn-negotiable Note: 
 
 when so deemed, 26, 27 
 
 days of grace on, 39 
 
 giving up on receipt of payment, 202 
 
 liability of indorser, 214 
 
 See Maker — Bill of Exchange. 
 
 Peoof, 
 
 holder's right of, 146 
 
 right of, compared with right of action, 146 
 
 rule against double, 146, 412 
 
 foreign bankruptcy, and double proof, 146, 412 
 
 creditor holding security, 146 
 
 rule in Ex p. Waring, 348 
 
 on accommodation bill, 99. See Accommodation Bill. 
 
 bill broker giving guarantee, 125 
 
 on contingent liability, by drawer or indorser, 146 
 
 production of bill for, 413 
 
 Pbopeety {in Bill), 
 
 when indorsement transfers, 121, 124, 132 
 when mere delivery transfers, 121 
 test as to when it passes, 58 — 64 
 conflict of laws, 278 
 
 See Transfer — Delivery — Securities for Bills. 
 
 Peotest, 
 
 what it is, 194, 199 
 
 founded on noting, 194 
 
 may be extended from noting at any timet, 196, 326 
 
 notice of, 176, 184, 195 
 
 foreign bill must be protested, 195 
 
 consequence of not protesting, 195 
 
 of inland bill in Scotland, 331 
 
 of foreign note not generally required, 317 
 
 at what time to be made, 196 
 
 at what place generally, 197 
 
Index. 475 
 
 Pbotest — continued. 
 
 if bill presented through post, 197 
 for non-payment of domiciled bill, 198 
 requisites in form, 198 
 stamp on, 405 
 
 by householder, if no notary available, 326, 333 
 of lost bill, or for non-delivery, 199 
 . forms, 333, 383—385 
 
 recovery of expenses of, 218 
 
 excuses for non-protest and delay, 200 
 
 not necessary to charge acceptor, 202 
 
 for non-payment to charge acceptor for honour, 259 — 261 
 
 on dishonour by acceptor for honour, 263 
 
 for better security, 197 
 
 in case of qualified acceptance, 162 
 
 foreign law and conflict of laws, 280 
 
 See Acceptance supra Protest — Noting — Payment supra 
 Protest. 
 
 Public Holiday. See Non-business Day. 
 
 Public Policy (Consideration contravening), 117. See also 
 War. 
 
 Qualified, 
 
 Acceptance, 
 
 what acceptances are, 50 — 53 
 
 effect on prior or subsequent parties, 162 
 
 holder's option to take, 161 
 
 notice to prior parties, 162 
 
 protest, 162 
 
 presentment to charge acceptor, 201 
 indorsement, 44, 132 
 delivery, 61 — 63 
 
 Bail-way Company, 
 
 capacity to contract by bill, 72 
 
 Ratification, 
 
 of forged or unauthorized signature, 82 — 85 
 
 by infant, after majority, 70, 71 
 
 action brought in name of principal or agent, 145 
 
 Seasonable Diligence, 153, 164, 169, 170, 186, 187 
 
476 Index. 
 
 Reasonable Hours, 156, 165 
 
 Reasonable Time, 
 
 presentment for acceptance, 154 
 
 payment, 139, 164, *86, 313 
 notice of dishonour, 182 — 185 
 filling up blank signature, 54 
 
 Receipt, 
 
 holder's duty to give, 29, 405 
 unstamped, on bill, 405, 407, 408 
 indorsement by way of, 29, 405, 408 
 
 Recourse {Bight of), 
 
 distinguished from right of action, 161, 173 
 
 Recovery op Money Patd, 234 — 239. See Mistake - 
 
 Rectification, 
 
 powers of Oourt, 216 
 
 Re-draft, 221 
 
 Re-exchange, 
 
 what and how computed, 220 
 
 fixed sum in lieu of, 221 
 
 term used in different senses, 220, 221 
 
 bill dishonoured by non-aooeptance, 221 
 
 Liability for\: 
 
 drawee to drawer, 208 
 
 acceptor to holder,- drawer, or indorser, 220, 221 
 
 drawer or indorser to holder, 220, 221 
 
 Referee in Oase of Need, 43. See Case of Need. 
 
 Re-Issue, 
 
 by acceptor or maker, 140, 231 
 by drawer or indorser, 140, 232 
 bank note, 309 
 
 Release (Verbal), 
 
 of bill or party, 242, 244. See Discharge. 
 
 Remitter, 98 
 
 Remote Parties, 
 
 notice of dishonour to, 185, 288 
 
 Remote and Immediate Parties, 
 
 consideration between, 61, 111 — 120 
 
Index. 477 
 
 Benewal, 
 
 effect of, 257 
 
 consideration for original bill as affecting, 258 
 
 agreements to renew, 258 
 
 Bent, 
 
 effect of giving bill for, 356 
 
 Eentjnciation, 
 
 discharge of bill on party by, 242 
 
 Eepeals, 327, 334' 
 
 Eepresentative, 
 
 personal liability of person signing as, 89, 124 
 vesting of bill in, 147 
 
 Beputed Ownership, 149 
 
 Bestrictive Indorsement, 132 — 135 
 what indorsements are, 132 
 rights and duties of indorsee, 133 
 rights of indorser, 133, 134 
 position of payor, 133, 134 
 
 Betractation of Payment, 228 
 
 Ee-transper, 140, 231, 232 
 
 Eevocation, 
 
 acceptance by drawee, 58 — 60 
 indorsement by indorser, 58 — 60 
 of delivery, 58—60 
 of authority by death, 55, 58 
 
 by bankruptcy, 290 
 of cheque by drawer's death, 289 
 
 St. Patrick's Day, 
 
 bank holiday in Ireland, 392 
 
 Sale of Bill, 
 
 different meanings of term, 98 
 
 liability of transferor by delivery, 223, 224 
 
 duty of transferee, 224 
 
 warranty on, 224, 225 
 
 " Sans Frais," or " Sans Protet," 45 
 
 "Sans Eecotjrs," 43, 44 
 
 Satisfaction (other than money payment), 228, 241 — 244 
 
478 Index. 
 
 Savings undeb the Act, 
 
 rules in bankruptcy, 328 
 
 common law and law merchant, 328 
 
 stamp or revenue laws, 330 
 
 Companies Acts, 330 
 
 rights of Banks of England and Ireland, 331 
 
 usages as to dividend warrants, 331 
 
 summary diligence in Scotland, 331 
 
 Scotland (Scotch law), 
 Act applies to, 1 
 hills and notes under 20s., 12 
 rule as to negotiability adopted, 28 
 Christmas Day and Good Friday, 40, 41, 390 
 bank holidays, 40, 41, 390 
 minors, 68 
 
 force and fear, 108, 109, 116 
 estoppels, 85 
 
 bill as assignment of funds, 204 
 saving for .summary diligence, 331 
 amendment of law of evidence, 332 
 rule of Ex p. Waring does not apply to, 350 
 sesennial prescription, 332 
 
 Scrip, 
 
 negotiable scrip, 376 
 
 Seal, 
 
 sufficiency as signature, 324 
 unsigned note under, 324 
 added to signature, 324 
 
 Secueities fob Bills op Exchange, 
 
 right of drawer as unpaid vendor, 343, 345 
 right of drawee on acceptance, 344 
 right of holder to cover for bill, 346 
 bill drawn against specific goods, 347 
 double insolvency, rule in Ex p. Waring, 348 
 right of drawer or indorser compelled to pay, 256, 351 
 right of surety compelled to pay, 256, 351. See Accom- 
 modation Bill. 
 effect of Prize Law, 344, 345 
 
 Security, 
 
 bill as collateral, 99, 353. See Collateral Security. 
 protest for better, 197 
 
Index. 479 
 
 Separate Estate, 
 
 bill of married woman who has, 70 
 
 Set {Bill drawn in), 270— 273 
 how drawn, 270 
 
 distinguished from "copy," 2:73 
 whole set one bill, 2:70 
 obligation of drawer to give, 2,70 
 duties of householder as to, 2:71 
 rights of holder of one part, 271 
 acoeptanoe, 272 
 indorsement, 271 
 payment, 272 
 
 taken up by drawer or indorser, 271 
 stamp laws as to, 270, 402 
 
 Set-off, 
 
 whether an equity which attaches to bill, 136, 138, 143 
 against holder suing as agent or trustee, 144 
 surety sued by holder, 103 
 counterclaim, 116 
 compensatio, 279, 280 
 
 Shake Certificates and Transfers, 
 
 how far similar to negotiable instruments, 376 — 379 
 effects of blanks in, 377 
 
 when transfers of, regulated by foreign law, 378 
 
 
 
 Sight, 
 
 "at sight" means "on demand," 33. See Demand Bill. 
 See After Sight. 
 
 Signature, 
 
 defined, 322 
 
 delivery to give efiect to, 58, 311 
 
 immaterial by what hand, if authorised, 321, 322 
 
 intended for different documents, 323 
 
 what sufficient in point of form, 322 
 
 of corporation, 325. See Seal. 
 
 of joint-stock company, 325, 410 
 
 of liquidators, 325 
 
 blank, 54 — 58. See Blank Signature. 
 
 of drawer, 9, 11 
 
 of indorser, 125 
 
 of stranger backing bill, 214 
 
 of acceptor, 48 
 
480 Index. 
 
 Signature — continued. 
 
 of acceptor supra protest, 260 
 
 of maker of note, 306 
 
 essential to liability on bill, 75, 77 
 
 firm signatures, 76, 78 
 
 fictitious. See Fictitious Party. 
 
 real person signing in assumed name, 75, 76 
 
 effect of "per proc," 86, 87 
 
 liability of person signing as agent or representative, 89, 
 
 90, 121 
 construction as principal's or agent's, 90, 91 
 forged or unauthorised, 81 — 86. See Forgery, Estoppel. 
 cancelled by mistake, 245 
 authorities to sign for another, 321, 322 
 to notice of dishonour, 180 
 
 Special Indorsement, 
 definition, 130 
 pffect, 130, 131 
 
 distinguished from restrictive, 133 
 certainty required as to indorsee in, 131 
 indorsement in blank converted into, 131 
 following indorsement in blank, 27, 131 
 action on bill so indorsed, 144 
 
 Stake-holder, 
 
 delivery of bill to, 59 
 
 Stale Cheque, 139 
 
 Stamp or Die, 
 
 sufficiency as signature, 322 
 cancellation of adhesive stamp by, 396 
 
 Stamp and Stamp Acts, 394 — 408, 415 
 bank note defined, 396 
 bill of exchange defined, 397 
 
 includes cheque, 397 
 bill on demand defined, 397, 398 
 promissory note denned, 398 
 
 when adhesive or impressed stamp to be used, 399, 400 
 adhesive stamp, how cancelled, 396 
 when adhesive stamp to be cancelled, 399, 400 
 facts affecting duty not truly set forth, 394 
 post-dated cheques, 395 
 
Index. 481 
 
 Stamp and Stamp Acts — continued. 
 
 cheque or bill on demand, how stamped, 3-99, 400 
 
 stamped after issue, 401 
 three-day bills stamped as bills on demand, 399, 408 
 foreign note and foreign bill not payable on demand, 399, 
 
 400 
 other bills and notes, how stamped, 400 
 bill purporting to be drawn abroad deemed so, 400 
 foreign stamps and conflict of laws, 274, 275, 400 
 impressed stamp of improper denomination, 400, 401 
 bill in a set, 402 
 
 effect of bill not being duly stamped, 401 
 amount of duty, 403, 415 
 
 sum payable expressed in foreign currency, 395 
 bill expressed to bear interest, 403 
 exemptions, 404 - 
 protest and other notarial acts, 405 
 re-stampihg after alteration, 247 
 bill void for want of, 401, 402 
 receipts, 405 
 
 Statute of Frauds, 66 
 
 Statute of Limitations, 336 — 342. See Limitations. 
 
 Stolen Bill, 
 
 title of bond fide holder to, 6, 55, 59, 62, 82, 302 
 
 onus probandi as to value, 109 
 
 payment to thief, when a discharge, 227, 230 
 
 inchoate or incomplete bill, 55 
 
 effect of Larceny Act, 1906... 107 
 
 Stbangee to Bill, 
 
 indorsement by, 214 
 acceptance supra protest by, 259 
 payment by, 229 
 payment supra protest by, 263 
 rights of, as equity attaching to bill, 137 
 acceptance for accommodation of, 102 
 action on bill payable to bearer by, 145 
 alteration by, 247 
 
 presentment for payment to charge, 174 
 notice of dishonour to, when necessary, 192 
 given by, 176 
 
 Steiking out Indorsement, 131, 244 
 
 c. 31 
 
482 Index. 
 
 Summary Diligence, 
 
 saving for Scotch law of, 331 
 
 Sum Payable, , 
 
 insertion of, 9 
 
 must be expressed in money, 9, 11 
 
 minimum limit for bill or note, 12 
 
 certainty required in statement, 29 
 
 instalment payments, 39 
 
 discrepancy between words and figures, 31 
 
 effect when left blank, 32, 54 
 
 authority to fill blank, 54 
 
 blank for, fraudulently filled up, 54 — 57 
 
 How Computed: 
 
 bill payable in foreign currency, 11, 30, 261 
 depreciated currency, 31 
 bill expressed to bear interest, 29, 32 
 bill payable according to exchange, 29 
 
 Alteration of: 
 material, 248 
 effect of, 245, 247, 250 
 acceptance in ignorance after, 245, 246 
 negotiation in ignorance after, 245., 246 
 recovery of money paid in ignorance, 235 — 239 
 
 Sum Eecovebable, 217. See Damages. 
 
 Sunday, 
 
 bill falling due on, 39 
 
 bill issued on, 37 
 
 when excluded in computing' time, 325 
 
 Surety. See Principal and Surety. 
 
 Suspension (of Bight of Action), 
 renewal of bill, 257, 258 
 acceptance supra protest, 259, 262 
 bill given in payment, 353 
 
 Taking up Bill, 
 
 by drawer or indors-er, 232 
 
 Tender, 
 
 by bill or note, 352 
 
 plea of post diem, by acceptor, 210 
 
Index. 48S 
 
 Thanksgiving Day {Public), 
 
 bill falling due on, 39. See Non-business Day. 
 
 Third Account, 259 
 
 Time {in general). 
 - See Reasonable Time — Non-business Day. 
 
 Time op Payment, 
 
 certainty required as to, 9, 34 
 
 qualified by acceptance, 52. See Qualified Acceptance. 
 
 effect of alteration in, 245, 248 
 
 effect of pre-payment, 231 
 
 no time expressed, 33 
 
 bill payable " at sight" or " on presentation," 33 
 
 accepted after maturity, 33 
 
 indorsed after maturity, 33 
 
 payable by instalments, 29 
 
 after sight or date, 41, 49 
 days of grace, 38 
 dies non, 39, 325 
 usance, 41 
 conflict of laws, 281 
 
 Trade and Trader, 
 
 terms " trade " and " business " not co-extensive, 80 
 trading and non-trading company or corporation, 72, 73 
 
 partnership, 78, 79 
 married woman sole trader in London, 69 
 penalty on clergyman trading, 69 
 capacity to trade, 69 
 reputed ownership of trader, 149 
 
 Trading with Enemy, 73, 74. See War. 
 
 Transfer, 
 
 (A) By Acti of Law; 
 marriage, 147 
 death, 147 
 execution, 148 
 bankruptcy, 148 
 reputed ownership, 149 
 (2?) By Assignment according to General Law: 
 equitable assignment or deed, 150 
 bill payable to order transferred without indorse- 
 ment, 123 
 donatio mortis causa, 151, 289 
 
 31 (2) 
 
484 Index. 
 
 Transfer — continued . 
 
 (C) By negotiation according to Law Merchant: 
 
 negotiation defined, 121 
 
 what bills negotiable, 26 — -29 
 In what manner: 
 
 mode determined by form, 121 
 
 bill payable to bearer by delivery, 121 
 
 order by indorsement, 121, 122 
 
 indorsement defined, 6, 121 
 
 indorsement as containing two contracts, 64, 130 
 
 formal requisites of indorsement, 125 
 
 place for indorsement, 126 
 
 partial indorsement, 126 
 
 indorsement in blank, 130 
 
 special indorsement, 130 
 
 conversion of blank into special indorsement, 131 
 
 blank indorsement followed by special, 27, 131 
 
 qualified indorsement, e.g., without recourse, 43, 44 
 
 facultative indorsement, e.g., waiving protest, 44 
 
 indorsement with reference in need, 41, 42 
 
 conditional indorsement, 129 
 
 restrictive or agency indorsement, 132 
 
 order of indorsements, 129 
 By whom: 
 
 by holder, 121, 133 
 
 by person not holder, 214. And see Forgery. 
 
 several payees or indorsees, 127 
 
 by agent or representative, 89, 124 
 To whom: 
 
 certainty required as to indorsee, 127, 131 
 
 re-transfer and re-issue, 140 
 At what time: 
 
 when bill ceases to be negotiable, 135 
 
 transfer before completion, 54 — 58 
 
 negotiation before issue by maker, 55, 62 
 
 presumption as to time, 139 
 
 when bill deemed overdue, 138, 139 
 
 negotiation after maturity, 135, 136 
 
 dishonour by non-acceptance, 140 
 action brought, 135 
 discharge, 138 
 Eights resulting: 
 
 general rights of holder, 142 
 
Index. 485 
 
 Than sfer — continued . 
 
 Eights resulting — continued. 
 
 right of holder with defective title, 142' 
 
 irregularity patent on bill, 103, 106 
 
 title through fictitious payee or indorser, 23 
 
 to duplicate of lost bill, 267 
 
 holder's right of action, 143 
 
 in whose name action on bill payable specially, 144. 
 
 to bearer, 144, 145 
 action on lost bill, 267, 414 
 right of proof in bankruptcy, 146, 348, 412 
 See also Securities for Bills of Exchange. 
 
 Transferor by Delivery, 
 defined, 222 
 non-liability on bill, 223 
 liability on consideration, 223, 224 
 warranty of, 223, 224 
 
 Treasury Bills, 361 
 
 Treasury Notes, 379 
 
 True Owner, 
 
 rights when bill misappropriated, 63, 239, 302 
 
 Trust, 
 
 declaration of, as to bill, 114 
 
 Trustee, 
 
 meaning of term as applied to bills, 135, 143 
 
 indorsee under restrictive indorsement as, 135 
 
 holder paid in part by drawer or indorser deemed, 233 
 
 bankruptcy of person holding bill as, 148 
 
 pledgee regarded as, for balance, 99, 166 
 
 position of holder suing as, 143 
 
 banker is debtor to, not trustee for, customer, 291 
 
 Trustee in Bankruptcy, 
 when bill vests in, 148 
 payment to, 148,. 149 
 notice of dishonour to, 182 
 presentment for acceptance to, 157 
 
 I 
 
 Unconscionable Bargains, 96 
 
 United States. See Preface, p. vii. 
 
 "Unregistered Association, 
 
 bill payable to officer of, 117 
 
486 Index. 
 
 Usage, 
 
 when evidence of, admissible, 328, 331 
 how proved, 328 
 
 Usance, 41 
 
 Usuby Laws, 30, 120. See Money Lender. 
 
 Vauje, 
 
 defined, 8, 93. See Consideration. 
 need not be specified, 15 
 
 " Value Beceived," 
 
 construction of the term, 15 
 
 Vaeying Acceptance, 50 — 53. See Qualified Acceptance. 
 
 Vendob, 
 
 lien of drawer, as unpaid, 343 
 
 sale of bill, 98 
 
 distinguished from person presenting bill, 225 
 
 Vis Majob, 170 
 
 Void Bill, 
 
 when by statute, 119, 120 
 
 transfer of, by mere delivery, 223, 224 
 
 when valid as equitable assignment or agreement, 10, 15, 
 
 307 
 notice of dishonour of, 192 
 general effect of, 401, 402 
 
 See also Stamp, ; 
 
 Voting in Bankeuptcy, 
 
 right of bill holder, 411 
 
 I 
 
 Wageb, 
 
 as consideration for bill, 118, 120 
 conflict of laws as to,. 278 
 
 Waives, 
 
 of bill, by holder, 242 
 
 of liabilities of parties by holder, 242 
 
 of presentment for paynlent, 172 
 
 of protest, 44, 193 
 
 of notice of dishonour, 188 
 
 distinguished from admission of due notice,. 189 
 
Index. 487 
 
 Want of Consideration, 
 current bill, 101, 112 
 overdue bill, 137. See AccommodfiUon Bill. 
 
 Was, 
 
 alien enemy, 73, 74 
 
 trading with the enemy, 74 
 
 bill delayed or lost owing to, 413, 414 
 
 English, moratory laws, 294 
 
 foreign moratory laws, 282 
 
 "Waking, Ex parte, 
 
 rule or doctrine of, 348 
 
 does not apply to Scotland, 350 
 
 Wakranty, 
 
 of indorser, 213 
 
 of transferor by delivery, 223 
 
 of genuineness distinguished from liability on considera- 
 tion, 224 
 
 of title to bill by person demanding payment, 225, 238 
 
 documents attached to documentary bill, 203, 348 
 See Estoppels. 
 
 Widow, 
 
 right of survivorship in bills, 147 
 
 Wipe, 69, 147. See Husband and Wife. 
 
 "Without Grace," 39 
 
 " Without Eecourse," 43 
 
 Words or Phrases. See Interpretation. 
 
 Writing, 
 
 defined, 8 
 
 contracts arising on bills are contracts in writing, 64 
 
 the end. 
 
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 ; . of the wo*fc.'"-~£aw Journal. » :. >'■ 
 
 LEAGUE OF NATIONS.-PoHock on the League 6f 
 - Nations*— By Rt. lion. Sir Frederick Pollock, Bt. 
 1920. - ■, 10s/ 
 
 LEGAL HISTORY —Deans' Student's Legal History.— 
 
 Thiid Edison. 1913.. ' 10s. 
 
 ''There is no better short introduction to the study of. the law." 
 —Law Notes. ■> ■ , ',-'-■•' , ' 
 
 LIBEL AND SLANDER— Bail's Law of Libel as affecting 
 jiewspalpers and Journalists.— 1912. . 6s. 
 
 "A weir-'arran^^jand well-eieoiited' wq*.'" — Law Journal^ .' 
 
 Odgers' Digest of the Law of Libel and Slander.— 
 
 Fifth Edition. 1911. . \ 11. 18s. 
 
 " Should be found oh the shelves of every practitioner. "—Laiv 
 Students' Journal. .■-.'''■■ 
 
 LUNACY.— Heywood and Massey's Lurtacy Practice.-- 
 
 Fourth, Edition: 1911. , 1?. 15s. 
 
 MAGISTRATES' PRACTICE, 1916.^By C. M. Atkinson, 
 Stipendiary Magistrate for Leeds. 20s. 
 
 MENTAL DEFICIENCY.— Davey's Law relating to the 
 Mentally Defective.— Second Edition. 1914. 10s. 
 " This -admirably arranged and handy book."— .Sow Journal. 
 
MORTGAGE.-Coote's treatise on the Law of Moft-f 
 gages. — Eighth "Edition. By Sydney E. Williams. 
 2 vols. 1912. Net, M- 3s. 
 
 "It is essentially a practitioner's book, and lye pronounce it 
 'one of the best.' "—Law Notes. ' 
 
 NATIONAL INSURANCE.— Watts ?>n National IrisuV 
 
 arice.— 19a 12s. 6'^ 
 
 NIGERIA— Titles to Land in Nigeria.— 1916. Net, 30s. 
 
 NOTARY.— Brooke's Office and Practice of a Notary. 
 
 . —Seventh Edition. By J. Oranstotjn. 1913. II 10s. ' 
 
 PARTNERSHIP.— Pollock's Digest of the Law of 
 
 Partnership.— Tenth Edition, 1915. 10s. 
 
 PEACE TREATY.— Picciotto and Wort's Treaty of Peace 
 with Germany: Clauses affecting Mercantile Law. 
 
 1919. * ,, Net,6s. 
 
 PLEADING.— Bulleri and ,Leake's Precedents of Plead- 
 ings. — Seventh /Edition. By W. Blaee Obqeks, K.C., 
 
 kndcWALtfiE Blake OpcfEES. v 1915. "■>':' h 2U 10s. 
 "The standard work on modern pleading. "-t-Law Journal. • 
 
 Eustace's Practical Hints on Pleading.'— 1907, 5s. 
 Odgers' Principles of Pleading and Practice.— Eighth 
 
 Edition. 1918. ' 1, 15s;.; 
 
 "The safest possible guide in all matters affecting pleading 
 and praciiee.'' — LaM Journal. . - 
 
 POOR LAW SETTLEMENT —Davey's Poor Law Settle- 
 ment and Removal.— Secpfid Edition. 1913'. 15s. 
 
 POWERS,— FarweJI's Concise Treatise on Powers.-/ 
 
 Third Edition. By C. J. W. Faewell and P. K. 
 Aechee. 1916. 11, 15s,- 
 
 PRIVATE BILLS.— Landers* Procedure and Practice 
 relating to Private Bills in^ Parliament. 1919.\ 
 
 'I ''.; ,/ :' * , ' .' - i^'i2s, 
 
 PRIZE CASES^— Cases Decided in the Prize Court and 
 on Appeal to the Privy Council. v 
 
 .'■■.-; Each Part Net, Is. pd. 
 
 PROFITEERING-— The Profiteering Act* 1919. /Fully 
 Annotated. By L/W. J. CosTello and K. O'SullivaN;. 
 ' With a Foreword by C. A, McCjjedy, K.C.j.Mj.P. \- 
 
 ■■'NetfM-, 
 
 PROPERTY— Strahan's General View of the Law 'of 
 Property. — Sixth Edition. By J. A. Steahan, assisted 
 by J. Sincjlaie Baxter. 1919. ' 16s. 
 
RATING.— DaVey's taw . of Rating!.— With' Supptemeni 
 
 ^(bringing the; Work down to June, 1919. iW,TLjtO«. 
 
 "■■y-.j^^Tlie SuppfeWient may.Jbe,ji0Mep®fatetfy,M0t>5s. 
 
 RECEIVERS AND MANAGERS.-^Riviere's Law relating 
 
 to Receivers and Managers!,— 1912. , . ,9*. 
 
 STATUTES.— Chitty's, Statutes to End-of 1920. , 'N?t,l it;. 
 Mutl. Particulars .ow. a)c(piicktidn? . ■<; ', , ,".« ! 
 
 TORT^4-Addisoh's< Law of Torts.— Eighth Edition,'. By 
 • ! " W,,E. GoKDqirandW. H./JaiFj^JS, 19Q6- Nely\l. 18s. 
 , / "Essentially the practjtitfndr^s' ■ text-bjwk "■^-fZa'ui Jdurti&l. 
 
 TRADE UNIONS.^Greenwood^s Law relating to Trade 
 
 /i,; Unions— 19 Jl. .' .,. . ..-,,'V ■■' ,10^ 
 
 '; "An admirably clear exposition of i the i&wfi^-Eeiio Qwirterly 
 
 Meviewl " , """'•''„? ;;••,,,- : .", ,- '' .-.■'•' ' '•: V -' . 
 
 A Suppijem^nt tp;al)0ye/\iaeluding the, Trade Wnion Act, 
 
 ■ ..i#i3v 1913: ■ /■ ;.-•<• v. . '.';,.■"■ , ■ ;mt,Bs.m 
 
 ':' ■ i' Thetufom)fks, together, iiei, lbs. , vj 
 
 TRANSPORT.— Robertson's Ministry of Transport Act Y 
 
 ,1919.7-With an. Introduction; and Notes'.'' ' 6s. 
 
 TRUSTS AND f RUSTEES -Godeiroi oh the Law of 
 ' Trusts and Trustees.^Fourth/ Edition: , By Sydney , 
 E. WiLtiajMs. ,1915. * ■;'. 'll.'l&s,, 
 
 "An! eminently practical and useful ir6Tk."-r-Law Times i 
 
 WAR.— Hig'gins,'" Defensively Armed Merchant Ships.— 
 
 ( 191,7. - ••''.-, !."■■'■•;, .- 5v j .-. , .'Net',; Is. 
 
 page's War, and Alien Enemies.— She paW affecting 
 
 • ; iheir Personal arid grading Eights; and herein of Oon- 
 
 ;, ! trabarid csf '■'W'sM? and the " Capture of ^Prizes at Sea. 
 
 Second .Editio^ , 1915. . r V;f v j, Net t 6s. 6d. 
 
 WILLS.-^Tlieobald's Concise Treatise on the Law of 
 
 . WiUiW^S^raai, Edition; 1908. , ., ,21.' 
 
 x ' 'f Indispensable to ^ |he ponyeyarioing pfaetitianer.''^JC^l« Kmes; 
 
 WORKMEN'S COMPENSATION, -r Costs under the 
 Workmen's Compensation Act. — With 'Precedents,. 
 
 ,:, ' 1915. ' , ;,,., ",;,. . >' • •■ ■ / '■ ' ." - '■•;'--g>. : ? 
 Snowies' Law relating to Compensation for Injuries 
 to Workjtrien.-HGJhird Edition. 1912. . 11. 
 
 *•> ' , ■ "Its merits entitle it to rank -with the best of the., treatiseiron 
 £he sai)je/at.":^-r£tip Quarterly Review.- ' , 
 
 Workmen's Compensation Reports.— A complete Series 
 , of.'fieports of Oases'; on the'\ubject of Workmen's Com - 
 ipensatioh,; With Annotated Index, 
 .' ;' • Subscription fpr 1920, 19s.' net impost free). 
 
 STEVENS &. SONS," Ltd,, 119 & 120, Chancery Lane, London,