fication of an unauthorized signature not $49 amounting to a forgery; paid on cheque. (b) if a cheque payable to order is paid by the Recovery drawee upon a forged endorsement out of the of amount funds of the drawer, or is so paid and charged forged to his account, the drawer shall have no right of action against the drawee for the recovery back of the amount so paid, nor any defence to any claim made by the drawee for the amount so paid, as the case may be, unless he gives notice in writing of such forgery to the drawee within one year after he has acquired notice of such forgery. Default of 2. In case of failure by the drawer to give such notice within the said period, such cheque shall be notice. held to have been paid in due course as respects every other party thereto or named therein, who has not previously instituted proceedings for the protection of his rights. 53 V., c. 33, s. 24. Imp. Act, ibid. The first paragraph of this section and proviso (a) are History of taken from the Imperial Act, and form the whole of section section. 24 of that Act. Proviso (b) and sub-section 2 are in part a substitute for section 60 of the Imperial Act, which protects a banker who pays a cheque or bill payable to order on demand on which one or more indorsements are forged or unauthorized. In the bill as introduced into the Canadian Parliament, section 60 was a copy of the same section in the Imperial Act; but after a long discussion it was struck out in the House of Commons as it would have made an important innovation in our law: Commons Debates, 1890, p. 1526. In the Senate a motion was made to restore it, but this was rejected: Senate Debates, 1890, p. 373. In lieu of section 60, proviso (b) and sub-section 2 of this section were in substance inserted in the Bill in the Senate: Debates p. 464; and the Commons finally accepted it. $49 History of section. By the amending Act of 1891 an additional sub-section was added to make it clear that a bank or endorser would have a remedy against endorsers subsequent to the forged endorsement. It was represented to Parliament that this added provision did not accomplish the purpose intended, and in 1897 that sub-section was repealed, and the present section 50 was substituted. "Subject to the Provisions of this Act."-These words in the Imperial Act apply especially to section 60 above referred to. The sections in the present Act to which they would appear to apply are 129, 130 and 133 relating to estoppel as to a drawer or acceptor of a bill, and 173 and 175 relating to the payment of crossed cheques by a bank. "Forged or Unauthorized Signatures."-Forgery is the making of a false document, knowing it to be false, with the intention that it shall in any way be used or acted upon as genuine, to the prejudice of any one, whether within Canada or not, or that some person should be induced, by the belief that it is genuine, to do or refrain from doing anything, whether within Canada or not: Criminal Code, R. S. C. c. 146, s. 466. Signing the name of a non-existing or fictitious person or firm with fraudulent intent is forgery: Reg. v. Rogers, 8 C. & P. 629 (1838). The following is the section of the Criminal Code relating to the forgery of "bills and notes:" "468. Every one who commits forgery of . . . (r) any bank note or bill of exchange, promissory note or cheque, or any acceptance, endorsement or assignment thereof, is guilty of an indictable offence and liable to imprisonment for life if the document forged purports to be, or was intended by the offender to be understood or to be used as genuine.” The forged instrument must be false in itself. The mere subscribing a cheque, given as a party's own, by a fictitious name, is not forgery: Reg. v. Martin, 5 Q. B. D. 34 (1879). The present section treats only of bills where the signature is forged, and not of those forged by being fraudulently altered. As to these latter, see section 145. A signature that is wholly unauthorized, whether purporting to be by procuration or otherwise, is as ineffectual to convey title to a bill as a forged signature, except as § 49 against a party who is precluded or estopped from setting up the forgery or want of authority. A signature placed on a bill, without being authorized, but not amounting to a forgery, may be ratified. It has been laid down that a forgery cannot be ratified, and the language of the first proviso of this section would seem by implication to sustain that view. In Brook v. Hook, L. R. 6 Ex. 89 (1871) Chief Baron Kelly, speaking for the majority of the court, says, p. 100: "In all the cases cited for the plaintiff, the act ratified was an act pretended to have been done for or under the authority of the party sought to be charged; and such would have been the case here if Jones had pretended to have had the authority of the defendant to put his name to the note, and that he had signed the note for the defendant accordingly, and had thus induced the plaintiff to take it. In that case, although there had been no previous authority, it would have been competent to the defendant to ratify the act. But here Jones had forged the name of the defendant to the note, and pretended that the signature was that of defendant; and there is no instance to be found in the books of such an act being held to have been ratified by a subsequent ratification or statement. Again, in the cases cited, the act done, though unauthorized at the time, was a civil act, and capable of being made good by a subsequent recognition or declaration; but no authority is to be found that an act which is in itself a criminal offence is capable of ratification." This view has been adopted by the Court of Appeal in Ontario: Merchants' Bank v. Lucas, 15 Ont. A. R. 573 (1889); and affirmed by the Supreme Court of Canada in the same case: 18 S. C. Can. 704 (1890). See also La Banque Jacques Cartier v. La Banque d' Epargne, 13 App. Cas. (1887) at p. 118; and Vagliano v. Bank of England, [1891] A. C. 130. In the Scotch case of McKenzie v. The British Linen Co., 6 App. Cas. 82, in the House of Lords, Lord Blackburn said (p. 99) that if a document was uttered under such circumstances of intent to defraud as amounted to forgery, the person whose name was forged could not ratify it so as to make a defence to the forger against a criminal charge. M'L B E.A. 10 Forged bill. $49 Forged bill. But," he added, "if the person whose name was used without authority chooses to ratify the act, even though known to be a crime, he makes himself civilly responsible just as if he had originally authorized it." It is to be observed, however, that it was held that in this case there was no ratification, and the principal question was one of estoppel, which it was also held was not made out. In Scott v. The Bank of New Brunswick, 23 S. C. Can. 277 (1894), where the signature of the payee of a nonnegotiable bank deposit receipt was forged and the money received by the forger, Strong, C.J., discusses the foregoing cases, and holds that Brook v. Hook is no longer law in so far as it states broadly that a forgery cannot be ratified, having been overruled by the McKenzie case. The decision in the Scott case was put upon the ground that the payee of the deposit receipt had ratified the payment by the bank, and that his action was properly dismissed. The question of estoppel as to forged cheques, and of the proper measure of damages in such a case, was discussed in the Privy Council in Ogilvie v. West Australia Mortgage Co., [1896] A. C. 257. In Ewing v. Dominion Bank, 35 S. C. R. 133 (1904), it was held, affirming the Ontario courts, that where the appellants received a notice from respondents that a note of theirs was held by the bank and giving particulars, the note being a forgery, they were under a legal duty to inform the bank at once of the fact, and as their not doing so enabled the forger to draw from the bank the balance of the proceeds of the discount of the forged note, it made them liable for the full amount of the note, as they were estopped from denying their signature. The Privy Council refused leave to appeal on the ground that it was a question of fact whether it was properly a case of estoppel or what Lord Blackburn in the McKenzie case called "a ratification for a time" of the signature, and that there was evidence on which the Canadian courts might find as they did. Followed in Pickup v. Northern Bank, 9 W. L. R. (Man.) 181 (1908). In Bank of Montreal v. The King, 38 S. C. R. 258 (1906), where the Dominion Government sued the bank for improperly paying cheques on which a clerk had forged the signatures of the officers of one of the departments as drawers, the Supreme Court, affirming the Ontario courts, held that $49 the exception in the first part of this section could not avail Forged the defence, as estoppel could not be invoked against the bill. Crown. Leave to appeal was refused by the Privy Council. In Embiricos v. Anglo-Austrian Bank [1905] 1 K. B. 677, it was held that section 24 of the Imperial Act which corresponds to the first part of this section in our Act does not apply to the case of an indorsement abroad. Where a bill is held with a forged signature, the court will restrain its negotiation by injunction, or order it to be given up and cancelled: Esdaile v. La Nauze, 1 Y. & C. 394 (1835). In the United States it has been held that a forgery may be ratified: Greenfield Bank v. Crafts, 4 Allen, 477 (1862); Union Bank v. Middlebrook, 33 Conn. 95 (1865); Casco Bank v. Keene, 53 Me. 103 (1865); Howard v. Duncan, 3 Lansing (N.Y.) 175 (1870); Bartlett v. Tucker, 104 Mass. 341 (1870); Wellington v. Jackson, 121 Mass. 159 (1876); Bowlin v. Creel, 63 Mo. App. 229. There are however decisions to the contrary: McHugh v. Schuylkill Co., 5 Am. Rep. 445 (1871); Shisler v. Vandike, 92 Penn. St. 449 (1880); Smith v. Tramel, 68 Iowa, 488 (1886); Henry v. Heeb, 114 Ind. 275 (1887). It will be seen that proviso (b) and sub-section 2 apply only to a cheque with a forged endorsement, which has been charged by the bank upon which it is drawn against the drawer. The failure of the drawer to give notice to the bank within the year, defeats not only his own right of action but also that of any other party to the cheque who has not taken proceedings within the year. Estoppel. In the Imperial Act "precluded" was used instead of "estoppel" when it was determined to extend the Act to Scotland, as the latter word is unknown to Scotch law. A party to a bill, whose signature is unauthorized or even forged, may by his language or conduct have led an innocent holder to take the bill as genuine, and he cannot subsequently repudiate it to such innocent holder. The rule is, that when one by his words or conduct wilfully causes another to believe in the existence of a certain state of things |