17, The fact that one person writes his name on the back of a bill of exchange and hands it to another, does not necessarily constitute the former an indorser, where the other is not a holder in due course: Westacott v. Smalley, 1 C. & E. 124 (1883).

18. Plaintiff drew a bill to his own order, which was accepted by the drawees, and guaranteed by defendant. The acceptors desiring time, plaintiff offered to consent if defendant would continue his guarantee. He wrote a letter and put his name on the back of the bill. Held, that defendant was not liable as an indorser, as the bill was never negotiated; but the bill and letter read together were sufficient to satisfy the Statute of Frauds and he was liable as a guarantor: Singer v. Elliott, 4 T. L. R. 524 (1888).

19. Plaintiff drew a bill to his own order for an advance to be made to the acceptor on condition the latter got an indorser. On getting the bill accepted and indorsed, he then signed as drawer, and indorsed below the signature of the indorser. No agreement with the indorser was proved. Held, that plaintiff was not a holder; there was nothing in the Bills of Exchange Act to take the case out of the law merchant, which did not allow the drawer to sue an indorser: Mander v. Evans, 5 T. L. R. 75 (1888).

66

20. A director of a company which was trying to get a bill discounted for the drawer, stamped the company's name on the back, and wrote his own name opposite the word Director." It required two directors to sign for the company. Not succeeding, he returned the bill to the drawer, leaving the incomplete indorsement inadvertently uncancelled. The drawer negotiated it. Held, that the director had not signed the bill, and was not liable as an indorser: London & Southern Cos. I. A. &. D. Co. v. Clamp, 7 T. L. R. 131 (1890).

21. A bill of exchange bore an indorsement to the effect that in case of non-payment by the acceptors, it was to be presented to the defendant. It was held that the indorsement which defendant had signed was not a part of the bill, and he could not be sued as an indorser, but was liable as a guarantor: Stagg v. Brodrick, 12 T. L. R. 12 (1895).

§ 131

A val.

132. Where a person signs a bill in a trade or Trade or assumed na ne he is liable thereon as if he had assumed signed it in his own name.

name.

2. The signature of the name of a firm is equiv- Firm alent to the signature by the person so signing, of name. the names of all persons liable as partners in that firm. 53 V., c. 33, s. 23. Imp. Act, ibid.

Assumed Name.-A person may adopt whatever name he pleases in his business dealings, unless there be some special reason against his using that particular name; and in such a case the adopted name is in law equivalent to his actual name. Thus an individual may carry on business in a firm

§ 132 name, or a husband in the name of his wife, or a principal in the name of an agent, or a corporation may use a firm name or that of its agents, etc.

Assumed or firm

name.

ILLUSTRATIONS.

1. A bill drawn and indorsed by a wife in her own name in the presence of her husband and under his direction was treated as the bill of the husband: Prestwick v. Marshall, 7 Bing. .565 (1831).

2. A bill drawn on William Bradwell was accepted by his wife Mary Bradwell in her own name. The husband recognized his liability and promised to pay. Held, that he was liable as acceptor: Lindus v. Bradwell, 5 C. B. 583 (1848). See also Ross v. Codd. 7 U. C. Q. B. at p. 74 (1850); and Trueman v. Loder, 11 A. & E. at p. 594 (1840).

3. Where one partner of an English firm did business for the firm in America in his own individual name, the firm was held liable on indorsements by him: South Carolina Bank v. Case, 8 B. & C. 427 (1828).

4. The "Boston Iron Company" was held liable on notes signed "Horace Gray & Co."; Melledge v. Boston Iron Co., 5 Cush. 158 (1849).

Firm Signature.-The signature of a firm is deemed to be the signature of all those who are partners in the firm, whether working, dormant or secret, or who, by holding themselves out as partners, are liable as such to third parties: Pooley v. Driver, 5 Ch. D. 458 (1876); Gurney v. Evans, 27 L. J. Ex. 166 (1858).

The partners are presumed to have given each other authority to do the business of the firm, and what is done by one binds the others, not only ordinary partners but also dormant or secret partners. And in trading or commercial partnerships each partner will be presumed to have authority to sign the firm name as drawer, acceptor, maker or indorser to commercial paper for the business of the firm. If a partner sign the firm name on his private business, the firm is not liable except to a holder in due course: Bank of Augtralasia v. Breillat, 6 Moore P. C. 152 (1847); Wiseman v. Easton, 8 L. T. N. S. 637 (1863).

In civil or non-trading partnerships there is no such presumption, and the partner signing the firm name may make only himself liable: Dickinson v. Valpy, 10 B. & C. 137 (1829); Thicknesse v. Bromilow, 2 Cr. & J. 425 (1832);

Ricketts v. Bennett, 4 C. B. 699 (1847); Garland v. Jacomb, § 132 L. R. 8 Ex. 219 (1873). But the others may become liable by estoppel or ratification: sec. 49.

ILLUSTRATIONS.

1. Where the drawing or accepting of bills is not a necessary part of the business of a firm, the fact that bills were drawn and accepted with defendant's knowledge while he was partner is sufficient to render him liable: Lee v. McDonald, 6 U. C. O. S. 130, (1841).

2. Where the plaintiff knowingly received a note indorsed for the accommodation of the maker by one partner without the co-partner's authority or knowledge, the latter is not liable: Harris v. McLeod, 14 U. C. Q. B. 164 (1856); Royal Canadian Bank v. Wilson, 24 U. C. C. P. 362 (1874).

3. A holder who received in good faith before maturity a note indorsed in the name of a commercial firm by one partner, is entitled to recover against the firm although the co-partner did not authorize the indorsement which was for the accommodation of the maker: Henderson v. Carveth, 16 U. C. Q. B. 324 (1858).

4. Where a firm of two or more indorse in the partnership name, the liability as sureties is a joint liability, and not the several liability of each partner: Clipperton v. Spettigue, 15 Grant, Chy. 269 (1868).

5. A draft was made on a firm and a partner marked it "good," adding his own initials. Held, that the firm was not liable: Hovey v. Cassels, 30 U. C. C. P. 230 (1879).

6. Where a solicitor signed his firm's name to an accommodation note without the authority or knowledge of his co-partner, the latter is not liable, even to a holder in due course: Wilson v. Brown, 6 Ont. A. R. 411 (1881).

7. Plaintiffs discounted a note for the maker, payable to and indorsed in a firm name by one of the partners, plaintiffs knowing that it was so indorsed as security for the maker, and having no reason to suppose it was in connection with the partnership businesss. Held, that the other partners were not liable: Federal Bank v. Northwood, 7 O. R. 389 (1884).

8. Where a person held out to be a partner gave a note in the name of the firm for money borrowed, and which was to be kept secret from the other partners, the lender cannot recover from the other members of the firm:. McConnell v. Wilkins, 13 Ont. A. R. 438 (1885).

9. Where plaintiff took a note which had been fraudulently signed by a partner in the firm name after dissolution, but before being advertised, and plaintiff knew nothing of the firm or its members, held, that the other partner was not liable: Standard Bank v. Dunham, 14 O. R. 67 (1887).

10. A note made fraudulently by a partner in the firm name binds the partnership in the hands of a bona fide holder for value: Walter v. Molsons Bank, Ramsay A. C. 80 (1877).

Firm sig

nature.

§ 132

Firm signatnre.

Endorser.

11. Where by the deed of dissolution of a partnership, one partner was given authority to sign notes in the firm's name, and another partner, when sued on such a note, pleaded that it was given without his knowledge in the name of a terminated co-partnership, he was held liable: White v. Wells, 1 L. N. 87 (1878).

12. A partner made notes in the firm's name, forged the name of the payee, got the notes discounted at the bank, and applied a large part of the proceeds to partnership purposes. Held, that the bank could not rank on the insolvent estate of the firm on the notes, but could for the amount of them as for money paid: Re Graham, 12 N. S. (3 R. & C.) 251 (1878).

13. A person who was a member in two firms made a note in the name of one, without the knowledge of his partner in that firm, to raise money for the other. The bank which discounted the note was aware of the facts. Held, that the partner who was ignorant of the making was not liable to the bank: Creighton v. Halifax Banking Co., 18 S. C. Can. 140 (1890).

14. In an action by a bona fide holder against a firm as indorsers of a note, it is no defence that it was indorsed fraudulently by one of the firm, and for matters not relating to the business of the partnership: McLeod v. Carman, 12 N. B. (1 Han.) 592 (1869).

15. Where a party takes a note made or indorsed in a firm's name, knowing that it was not for the purposes of the partnership, the onus is on him to prove the knowledge or assent of each partner: Union Bank v. Bulmer, 2 Man. 380 (1885).

16. Where a bill is drawn on M. & McQ. for goods supplied to M., McQ. & Co., and accepted in the name of M. & McQ. by the manager of M., McQ. & Co., the latter are not liable as acceptors of the bill: Quebec Bank v. Miller, 3 Man. 17 (1885).

17. Where a bill is payable to the order of a firm and the partnership is subsequently dissolved, the indorsement of an ex-partner of the late firm transfers the property therein, and authorizes the payment thereof: King v. Smith, 4 C. & P. 108 (1829); Lewis v. Reilly, 1 Q. B. 349 (1841). Contra, 1 Daniel, § 370a, and cases there cited.

18. Where a member of a firm in fraud of his partner accepts a bill in a name which is not the regular firm name but resembles it, the latter is not liable: Faith v. Richmond, 11 A. & E. 339 (1840); Kirk v. Blurton, 9 M. & W. 284 (1841); Royal Canadian Bank v. Wilson, 24 U. C. C. P. 32 (1874).

19. A person carries on business in his own name, but has a dormant partner. He accepts a bill in the common name on his private account. If the dormant partner can show that the bill is not a firm bill, he is not liable: Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109 (1880).

133. The endorser of a bill, by endorsing it, subject to the effect of any express stipulation herein before authorized,-

or com

(a) engages that on due presentment it shall be 133 accepted and paid according to its tenor, and Engages that if it is dishonoured he will compensate acceptance the holder or a subsequent endorsee who is pensation. compelled to pay it, if the requisite proceedings on dishonour are duly taken; 53 V., c. 33, s. 52 (2 a); 7-8 Edw. VII., c. 8, s. 1. Imp. Act, s. 55 (2 a).

In the Revised Statutes the word endorser was printed in the fourth line of (a) instead of endorsee. The error was corrected in 1908, by the Statute above noted.

As regards the holder of a bill an endorser has been compared to a new drawer: Penny v. Innes, 1 C. M. & R. at p. 441 (1834); Steele v. McKinlay, 5 App. Cas. at p. 769 (1880).

varied.

This section sets out the ordinary contract of the en- May be dorser. It may, like that of the drawer, be varied in different ways. His liability may be limited or even negatived; or he may waive, as regards himself, some or all of the duties imposed on the holder as to presentment, protest and notice: sec. 34. See also section 60 and following sections.

As to the nature of the contract of indorsement, see the remarks of Maule, J., in Castrique v. Buttigieg, 10 Moore P. C. at p. 108 (1855).

The indorsers may have an agreement varying as between themselves the undertaking in this section, and even reversing the order in which they are to be liable to each other. If two or more persons indorse a bill or note to accommodate the acceptor or maker, their relation to each other is that of co-sureties, irrespective of the order in which they have indorsed: Macdonald v. Whitfield, 8 App. Cas. 733 (1883). See Small v. Riddel, 31 U. C. C. P. 373 (1880).

The fact that two persons indorsed a note for the accommodation of the maker does not give the prior indorser any recourse against the subsequent indorser, unless he shows that the latter intended to assume liabilities different from