§ 31 converted into a bill, it operates as a prima facie Authority, authority to fill it up as a complete bill for any amount, using the signature for that of the drawer or acceptor, or an endorser; 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. 53 V., c. 33, s. 20 (1). Imp. Act, ibid.

This section applies to notes as well as to bills, and is copied from the Imperial Act with the omission of its reference to stamps. In the case of a note the signature could be used for that of the maker or endorser. In England the signature must be on "blank stamped paper," and it can only be filled up for an amount that "the stamp will cover." This is a great aid in checking fraud. It is to be observed that the paper must have been delivered by the signer in order that it might be converted into a bill or note, and the onus of proving this delivery is on the holder. Once it is proved that it was so delivered, the onus is shifted, and it is then for the signer to prove that it was not filled up within a reasonable time or in accordance with the authority given. The particular case of an undated bill which is payable at a fixed period after date, or an undated acceptance of a bill payable at sight or at a fixed period after sight, is provided for by section 30.

Inchoate instru

ments.

ILLUSTRATIONS.

1. Where the payee of a note indorsed it with the date and amount blank, he was liable to an innocent indorsee for the note as filled up: Sanford v. Ross, 6 U. C. O. S. 104 (1841).

2. An indorser of a note who signs before the maker or payee, and before the amount is filled up, is liable on the note as completed: Rossin v. McCarty, 7 U. C. Q. B. 100 (1849).

3. The maker of a note delivered it with the amount in blank. It was fraudulently filled up for $855. He was held liable to an innocent indorsee: McInnes v. Milton, 30 U. C. Q. B. 489 (1870).

4. Where defendant indorsed as payee a note for $500, on which there was a blank space to the left of the word "five," which the maker fraudulently filled up with the word "twenty, the indorser was held liable for $2,500 to an innocent indorsee: Dorwin v. Thomson, 13 L. C. J. 262 (1869).

5. A writing in the form of a note, which was written over the signature of the maker, given merely for the purpose of indicating his address, cannot be recovered on: Ford v. Auger, 18 L. C. J. 296 (1874).

6. Where a signature was obtained ostensibly for a receipt, and a note was written over it, the signer is not liable: Banque Jacques Cartier v. Lescard, 13 Q. L. R. 39 (1886).

7. A note, signed in blank and sent with instructions to be filled up for $115, was filled up for $461. Held, that the maker was liable for the full amount to a holder in due course: Bank of Nova Scotia v. Lepage, M. L. R. 6 S. C. 321 (1889).

8. A note payable to

or order cannot be recovered by the person to whom it was given, either as payee or bearer, without inserting his name in the blank as payee: Mutual Safety Ins. Co. v. Porter, 7 N. B. (2 Allen) 230 (1851).

9. A note with a blank for the name of the payee, and the rate of interest, was filled up with the name of the first indorser as payee, and with a reasonable rate of interest by a subsequent indorser. It was held to be good: Burton v. Goffin, 5 B. C. R. 454 (1897).

10. A note with a blank for the rate of interest was filled up with the figures 18, and was held good: Brit. Col. L. & I. Agency v. Ellis, 6 B. C. R. 80 (1898).

11. A. indorsed a note for the accommodation of the maker on condition that B. should indorse also. The maker issued it without B.'s indorsement. Held, that a holder in due course could not recover from A.: Ontario Bank v. Gibson, 3 Man. 406 (1886); 4 Man. 440 (1887).

12. A bill is drawn payable to or order. Any holder for value may write his own name in the blank and sue on the bill: Crutchly v. Mann, 5 Taunt. 529 (1814).

13. A note is signed by one maker on condition that another sign as joint maker. The person to whom he gives it fills it up without the other signature and negotiates it. A holder in due course cannot recover: Awde v. Dixon, 6 Ex. 869 (1851).

14. Where a blank acceptance was stolen from the desk of the signer and filled up, he was held not liable to a holder in due course: Baxendale v. Bennett, 3 Q. B. D. 525 (1878).

15. Three bills of exchange were accepted by defendant without a drawer's name and handed to B. in payment of bets. B. subsequently, for consideration, handed the bills to the plaintiff who signed his own name to them as drawer and sued the defendant on them. Held, that the Gaming Act, 1892, did not apply, and that the defendant was liable: Faulks v. Atkins, 10 T. L. R. 178 (1893).

16. A bill drawn payable "to order," indorsed by the drawer, need not be filled up, as it should be read "to myself or order:" Chamberlain v. Young, [1893] 2 Q. B. 206.

$ 31

Filling up

bills.

§ 32 When to be

complete.

Reason

able time.

32. In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time, and strictly in accordance with the authority given: 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 filled up within a reasonable time and strictly in accordance with the authority given.

2. Reasonable time within the meaning of this section is a question of fact. 53 V., c. 33, s. 20 (2). Imp. Act, ibid.

Where a party received a note with instructions to fill it up for £15, but filled it up for £30, the stamp being sufficient for the latter sum, and gave it to the payee for value and without notice of the breach of authority, the payee was held not entitled to the benefit of this proviso, it being held that the note was not "negotiated" to him but “issued": Herdman v. Wheeler, [1902] 1 K. B. 361.

This case was questioned in the Court of Appeal in Lloyds Bank v. Cooke, [1907] 1 K. B. 361, in which the defendant S. signed two blank notes for C. which he was to fill up for £250 each. He filled one of them up for £1000 for which the stamp was sufficient, and discounted it with the plaintiffs who gave full value in good faith. The court unanimously gave judgment for plaintiffs. The Master of the Rolls and Cozens-Hardy, L.J., without passing upon Herdman v. Wheeler, rested their judgment entirely upon the common law doctrine of estoppel; Fletcher Moulton, L.J., was of opinion that this section applied, that the note was negotiated to plaintiffs and that they were holders in due

course.

Where a contract imports performance within a reasonable time, extrinsic evidence of all the material circumstances is necessarily admissible to determine what is a reasonable time for the purpose: Ellis v. Thompson, 3 M. & W. 445

(1838); Attwood v. Emery, 1 C. B. N. S. 110 (1856); Good- § 32 wyn v. Cheveley, 4 H. & N. 631 (1859); Brighty v. Norton, 3 B. & S. 305 (1862); Toms v. Wilson, 4 B. & S..455 (1863); Hales v. London & N. W. Ry., 4 B. & S. 66 (183):'

It is for the party other than a holder in due course seeking to enforce the bill to account for the delay if it has been unusual.

Where a debtor gave his creditor a blank promissory note and subsequently failed, and the creditor did not fill up the note until after he had obtained his discharge five years later, the jury found that the delay was not unreasonable under the circumstances and the verdict was upheld: Temple v. Pullen, 8 Ex. 389 (1853).

The word "completion" in the proviso does not include delivery: Herdman v. Wheeler, [1902] 1 K. B. at p. 371.

"The Authority Given."-The onus is on the signer seeking to escape liability to prove that the authority given has been exceeded, as the holder has prima facie authority to fill up as he sees fit: Anderson v. Somerville, 1 Rettie (5th series), 36 (1898). If no instructions have been given or are proved, the bill will be upheld. Any person taking a bill in an incomplete state is exposed to this defence except in the case of the want of a date in section 30. Death revokes the authority to fill up a bill unless the holder be a holder for value. The liability of the signer begins when the bill is first issued complete in form, and not when he signs.

"Holder in Due Course."-The preceding limitations, as to time and authority, have no application to one who takes a bill complete and regular on the face of it before maturity, in good faith and for value without notice of dishonor or defect: secs. 56 and 74; Hanscome v. Cotton, 15 U. C. Q. B. 42 (1857); Merchants' Bank v. Good, 6 Man. L. R. 339 (1890); Montague v. Perkins, 17 Jur. 557; 22 L. J. C. P. 183 (1853). The instrument so taken must have been originally delivered as a bill or delivered in an incomplete state in order that it might be converted into a bill.

"A Reasonable Time."-In determining what is a reasonable time regard should be had to the nature of the bill, the usage of trade, and the facts of the particular case: secs. 77, 86, and 166.

Complet

§ 32

Completing bill.

Referee in case of need.

ILLUSTRATIONS.

1. A partnes having authority to do so gives a blank acceptance in the name of his firm and dies It may be filled up and enforced. Against the surviving partners: Usher v. Dauncey, 4 Camp:.97 (1814).

2. After the death of a signer of an accommodation acceptance it was filled up in the presence of a person who discounted it. The latter cannot recover from the estate of the acceptor: Hatch v. Searles, 2 Sm. & G. 147 (1854).

3. A debtor gives a blank acceptance to a creditor who dies without filling it up. The administrator has a right to fill it up, using his own name as drawer: Scard v. Jackson, 24 W. R. 159; 34 L. T. N. S. 65 (1875).

4. A partner gives without authority a blank acceptance of his firm. It is subsequently negotiated in an incomplete state to a holder for value who completes it. The latter cannot recover on the bill Hogarth v. Latham, 3 Q. B. D. 643 (1878).

5. A debtor gives his creditor a blank acceptance and dies. The creditor may fill in his own name as drawer and payee and recover from his debtor's estate: Carter v. White, 20 Ch. D. 225 (1882); 25 Ch. D. 666 (1883).

6. An acceptance is signed with £4 in the margin, but with the amount blank in the body of the bill. It is fraudulently filled up for £40 and the margin altered to £40. The acceptor is liable

to a holder in due course for £40: Garrard v. Lewis, 10 Q. B. D. 30 (1882).

months after date"

7. A bill without date and payable was filled up with the date Sept. 24th, 1887, and made payable 18 months after date. Held, that it was valid in the hands of a bona fide holder for value: Morgans v. Heskett, 6 T. L. R. 162 (1890).

8. Plaintiff accepted bills without dates or drawers' signatures, and gave them to an agent with authority to fill up when cash was given plaintiff for them. He filled up dates and induced defendant to sign as drawer after his authority had been revoked. They were indorsed as bona fide holders for value. The jury found that defendant acted in good faith but negligently. Held, that plaintiff was entitled to recover the amount he was obliged to pay: Watkin v. Lamb, 17 T. L. R. 777 (1901); 85 L. T. 483.

33. The drawer of a bill and any endorser may insert therein the name of a person, who shall be called the referee in case of need, to whom the holder may resort in case of need, that is to say, in case the bill is dishonoured by non-acceptance or non-payment.