§ 133 those assumed by so signing: Poisson v. Bourgeois, Q. R. 17 S. C. 94 (1898); McRae v. Lionais, Q. R. 16 S. C. 262 (1899).

Genuineness and regularity.

Validity.

Estoppel of

endorser.

(b) is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous endorsements;

(c) is precluded from denying to his immediate or a subsequent endorser that the bill was, at the time of his endorsement, a valid and subsisting bill, and that he had then a good title thereto. 53 V., c. 33, s. 55 (2 6 and c). Imp. Act, ibid.

An endorser by putting his name on the back of the bill has in effect made these representations, and he is estopped from denying them to one who has in good faith given value for it while current, without notice of any defect.

ILLUSTRATIONS.

1. In an action against the last indorser, it is no defence that the names of the maker and prior indorsers are forged: Eastwood v. Westley, 6 U. C. O. S. 55 (1839); McLeod v. Carman, 12 N. B. (1 Han.) 592 (1869).

2. The indorser of an unaccepted bill is estopped from denying the signature or the competence of the drawer, a married woman: Ross v. Dixie, 7 U. C. Q. B. 414 (1850). See also Griffin v. Latimer, 13 U. C. Q. B. 187 (1856); Hanscome v. Cotton, 16 U. C. Q. B. 98 (1857).

3. The indorser of a note made by a corporation is estopped from alleging that it was ultra vires: Merchants' Bank v. United Empire Club Co., 44 U. C. Q. B. 468 (1879).

4. An indorser sued on a note by the indorsee cannot plead that the note is null, because made by a married woman without the authorization of her husband: Leblanc v. Rollin, Mont. Cond. Rep. 68 (1854); Norris v. Condon, 14 Q. L. R. 184 (1888).

5. An accommodation indorser cannot in an action by a holder in due course plead that the signature of the maker is forged: Choquette v. Leclaire, Q. R. 19 S. C. 521 (1900).

6. A note in favor of two payees jointly was indorsed by one of them to a person who in turn indorsed it to another. The latter sued the payee who had indorsed. Held, that defendant was estopped

from setting up the want of indorsement by the other payee: Thurgar v. Clarke, 4 N. B. (2 Kerr) 370 (1844).

§ 133

7. Where a partner, having authority to draw and indorse, Estoppel. raised money for firm use by drawing bills in fictitious names and indorsing them in the firm name, the other partner was liable to an indorsee Thicknesse v. Bromilow, 2 Cr. & J. 425 (1832).

8. A plea denying the indorsement to defendant who indorsed it to plaintiff is bad: MacGregor v. Rhodes, 6 E & B. 266 (1856). See Lambert v. Pack, 1 Salk. 127 (1699); Bomley v. Frazier, 1 Stra. 441 (1721).

9. An indorsement for collection on a cheque made by one bank in sending it to another for payment, not being an indorsement for transfer and sale, does not carry with it a guarantee of previous indorsements: First Nat. Bank v. City Nat. Bank, 182 Mass. 130 (1902).

damages.

134. Where a bill is dishonoured, the measure Measure of of damages which shall be deemed to be liquidated damages shall be,

(a) the amount of the bill;

Amount of

bill.

(b) interest thereon from the time of present- Interest. ment for payment, if the bill is payable on demand, and from the maturity of the bill in any other case;

(c) the expenses of noting and protest. 53 V., Expense. c. 33, s. 57.

These damages are recoverable immediately on the dishonour of a bill either by non-acceptance or non-payment.

They are deemed to be liquidated damages and may be included in a summary judgment on a specially endorsed writ in provinces where such a practice obtains.

(a) Amount of the Bill.-If the bill bears interest on its face this would be included: sec. 28 (a); Crouse v. Park, 3 U. C. Q. B. 458 (1847); Hudson v. Fawcett, 7 M. & G. 348 (1844). So would exchange if indicated in the bill: sec. 28 (d), sec. 163.

(b) Interest. This clause applies only to interest allowed as damages for non-payment of the bill at maturity. As to interest provided for by the bill itself which forms part

§ 134 of the bill or debt, see section 28, p. 94 ante. The rule in this clause is in accordance with the general rule as to interest. See R. S. O. c. 51, s. 114; C. C. Arts. 1067, 1069, 1070, 1077.

Interest.

'The rate of interest allowed by the law of Canada was formerly six per cent.: R. S. C. (1886) c. 127, s. 2. Since the 7th of July, 1900, it has been five per cent.: 63-64 V. c. 29, s. 1; R. S. C. c. 120, s. 3.

A third sub-section in the English Act giving the Courts or jury a discretion as to the rate of interest to be allowed as damages was not adopted for Canada.

(c) Expenses.-As to these see section 124. Under this term the expense of protesting for better security is not included under the Imperial Act, which only allows it "when protest is necessary "; nor is commission nor brokerage: Re English Bank of the River Plate, Ex parte The Bank of Brazil, [1893] 2 Ch. 438; Banque Populaire v. Cavé, 1 Com. Cas. (Eng.) 67 (1895).

It has been held that this and the succeeding section do not exclude such unliquidated damages as might be claimed under the common law or the law merchant by a foreign drawer for re-exchange where a bill accepted in England and payable there has been dishonoured: In re Gillespie, Ex parte Robarts, 18 Q. B. D. 286 (1886). See Re General South America Co., 7 Ch. D. 637 (1877).

Interest and expenses.

ILLUSTRATIONS.

1. Where a bill or note is payable with interest at a certain rate, this rate governs after maturity: Howland v. Jennings, 11 U. C. C. P. 272 (1861); Montgomery v. Boucher, 14 U. C. C. P. 45 (1864); O'Connor v. Clarke, 18 Grant, 422 (1871); Keene v. Keene, 3 C. B. N. S. 144 (1857). Overruled by No. 7 below in provinces where English law obtains.

2. In the absence of proof, interest will be allowed at the rate allowed by our law on a note dated and payable in the United States: Griffin v. Judson, 12 U. C. C. P. 430 (1862).

3. Where a note fixes the rate to be paid after maturity "and until paid," this will be allowed, in the absence of fraud, however exorbitant: Young v. Fluke, 15 U. C. C. P. 360 (1865).

4. Where a note was dated and payable in New York, but $ 134 discounted in Canada, the law of Canada governs as to interest: Cloyes v. Chapman, 27 U. C. C. P. 22 (1876).

Interest

and ex

5. Where the holder of a note recovered judgment with costs penses. against the maker and indorser, and the indorser paid and took an assignment of the judgment, he is entitled under R. S. O. c. 116, s. 3, to recover from the maker the whole of the judgment, including costs: Harper v. Culbert, 5 O. R. 152 (1883).

6. Where indorsers waived protest, the interest after maturity was not fixed by C. S. U. C. c. 42, s. 13, so as to enable the holder to rank for it under the Insolvent Act: Re Macdougall, 12 Ont. A. R. 265 (1885).

7. A note for $3,000, payable six months after date "with interest at the rate of two per cent. per month until paid," only bears interest at the legal rate of six per cent. after maturity: St. John v. Rykert, 10 S. C. Can. 278 (1884). See also Dalby v. Humphrey, 37 U. C. Q. B. 514 (1875); Simonton v. Graham, 8 Ont. P. R. 495 (1881); Powell v. Peck, 15 Ont. A. R. 138 (1888); People's Loan and Deposit Co. v. Grant, 18 S. C. Can. 262 (1890); Cook v. Fowler, L. R. 7 H. L. 29 (1874).

8, In Quebec under the old law a note payable on demand bore interest from its date: Dechantal v. Pominville, 6 L. C. J. 88 (1860). but under the Code, only from demand and default: Cleroux v. Pigeon, 32 L. C. J. 236 (1888).

9. "Bank charges' on a specially indorsed writ is a sufficient description of the expenses of noting: Dando v. Boden, [1893] 1 Q. B. 318. As to an indorsement for interest, see London & Universal Bank v. Clancarty, [1892] 1 Q. B. 689; Lawrence v. Willcocks. ibid. 596; McVicar v. McLaughlin, 16 Ont. P. R. 450 (1895).

135. In case of the dishonour of a bill the Recovery holder may recover from any party liable on the of same. bill, the drawer who has been compelled to pay the bill may recover from the acceptor, and an endorser who has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior endorser, the damages aforesaid. 53 V., c. 33, s. 57.

The payment of these damages in such circumstances is among the liabilities assumed by the acceptor: sec. 128; by the drawer: sec. 130; and by the endorser: secs. 131 and 132. Particulars of the damages are given in section 134.

$ 135

Re

and

The present section provides for the case of a bill dishonoured in Canada; the following one for a bill dishonoured abroad.

136. In the case of a bill which has been disexchange honoured abroad in addition to the damages aforeinterest. said, the holder may recover from the drawer or any endorser, and the drawer or an endorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. 53 V., c. 33, s. 57.

No further

Re-exchange has been defined in England as the amount which the holder would have to pay to put himself in funds in the country where the bill was payable, or which the party who has been compelled to pay the dishonoured bill would have to pay for a sight bill, drawn at the time and place of dishonour at the then current rate of exchange on the place where the drawer or indorser sought to be charged resides, to cover the amount of the dishonoured bill with interest and expenses De Tastet v. Baring, 11 East, at p. 269 (1809); Suse v. Pompe, 8 C. B. N. S. at pp. 566, 567, (1860); Willans v. Ayers, 3 App. Cas. at p. 146 (1877). In English practice the re-exchange bill is now seldom actually sent, but the damages are computed on the same basis as if it were: In re Commercial Bank, 36 Ch. D. at p. 528 (1887).

Under the Canadian Act, re-exchange would not include the items named in section 134, otherwise these would be paid twice.

The same rule prevails in the United States: Bank of the United States v. United States: 2 How. 727 (1844). The provisions of this section apply to promissory notes with the necessary modifications: sec. 186.

It will be observed that the present Act does not recognize or allow the further damages formerly allowed on bills drawn or negotiated in Canada and dishonored by non-payment abroad. In the various provinces there was allowed a percentage from ten per cent. downward. By the Dominion Act of 1875, embodied in R. S. C. (1886) c. 123, s. 6,