Bills of Exchange Act, 1882.

323

and (b) if he obtains payment of the bill the person who pays him in due course" (vide sect. 59 (1), post, p. 367) “gets a valid discharge for the bill."

Sect. 53. (1.) A bill, of itself, does not operate as an 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."

Sect. 58. (1.) Where the holder" (vide sect. 2, ante, p. 318) " of a bill payable to bearer negotiates it by delivery without indorsing it, he is called a transferor by delivery.'

"(2.) A transferor by delivery is not liable on the instrument."

"(3.) A transferor by delivery who negotiates a bill thereby warrants to his immediate transferee being a holder for value that the bill is what it purports to be, that he has a right to transfer it, and that at the time of transfer he is not aware of any fact which renders it valueless."

Sect. 71. "(1.) Where a bill is drawn in a set, each part of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill."

"(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 owner of the bill; but nothing in this sub-section shall affect the rights of a person who in due course accepts or pays" (vide sect. 59 (1), post, p. 367) “the part first presented to him." As to stamp on bills in sets, vide ante, p. 227.

Sect. 72. "Where a bill drawn in one country is negotiated, 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" (vide sect. 2, ante, p. 318), "and the validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement" (vide sect. 2, ante, p. 318), "or acceptance supra protest, is determined by the law of the place where such contract was made.

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 :

(b.) Where a bill, issued out of the United Kingdom, conforms, as regards requisites in form, to the law of the United Kingdom, it may for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in the United Kingdom."

"(2.) Subject to the provisions of this Act," (vide infra) "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. Provided that where an inland bill is indorsed in a foreign country the indorsement shall, as regards the payer, be interpreted according to the law of the United Kingdom."

"(3.) The duties of the holder with respect to 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." "(4.) Where a bill is drawn out of but payable in the United Kingdom and the sum payable is not expressed in the currency of the United 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." The value for stamp duty is ascertained at the date of the instrument, vide ante, p. 214. "(5.) Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable."

Amount of bill.] There is now no restriction as to the amount of a bill, for the stat. 48 Geo. 3, c. 88, s. 2, is repealed by the B. of Ex. Act, 1882, 8. 96.

Production of the bill.] It is generally necessary for the plaintiff to produce the bill or note on which he claims, whenever the form of pleading puts it in issue; and even when not in issue, interest is not recoverable without production. Hutton v. Ward, 15 Q. B. 26; 19 L. J., Q. B. 293. But, where it appears that it has been destroyed, as where the defendant tore his own note of hand, a copy is admissible; Anon., 1 Ld. Raym. 731; or, other secondary evidence may be given where the defence is not raised that the instrument is lost or destroyed. Blackie v. Pidding, Charnley v. Grundy, infra. Thus, under a defence denying acceptance, it is not competent for defendant to avail himself of the defence that plaintiff, an indorsee, has lost the bill and cannot produce it. Blackie v. Pidding, 6 C. B. 196. So, in an action on a note against maker, the defence of the loss of it must be pleaded specially. Charnley v. Grundy, 14 C. B. 608; 23 L. J., C. P. 121. The principle of this defence is that the holder of a negotiable security is only entitled to payment on production of it for re-delivery to the person liable to pay. If the defendant refuses to pay on that ground only, as where it is destroyed or is lost, there must be a plea to that effect. In Poole v. Smith, Holt, N. P. 144, Gibbs, C. J., seems to have held that where the bill is lost after plea pleaded, the defence might be raised without a special plea: sed

quære.

By Sect. 69. "Where a bill has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever 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."

Sect. 70. "In any action or proceeding upon a bill, the court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity be given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question.' See sect. 51, 8, post, p. 352, as to protest on lost bill.

Unless the plaintiff avail himself of relief afforded by these sections he cannot, where the defence is properly pleaded, recover on a lost bill indorsed by the payee without proving that it had been destroyed; though he had offered an indemnity to the defendant; Pierson v. Hutchinson, 2 Camp. 211; Hansard v. Robinson, 7 B. & C. 90; and, though the bill was lost after it became due; S. C.; or, was payable to the plaintiff's order and not indorsed when lost; Ramuz v. Crowe, 1 Exch. 167. See further Conflans Stone Quarry Co. v. Parker, L. R., 3 C. P. 1. And, the loss of a bill in a negotiable state, is fatal to a recovery, on the debt, for which the bill was given, as well as, on the bill. Crowe v. Clay, 9 Exch. 604; 23 L. J., Ex. 150, Ex. Ch. Even an express promise by the defendant to pay the bill will not entitle the plaintiff to recover on it. Davis v. Dodd, 4 Taunt. 602. But, the payee of a note, not negotiable, may require payment without producing it. Wain v. Bailey, 10 Ad. & E. 616; and see per Jervis, C. J., in

Production of Bill.-Variance in Parties.

325 Charnley v. Grundy, 14 C. B. 614; 23 L. J., C. P. 122. If the acceptor improperly detain the bill in his hands, the drawer or other party may sue him upon it, without giving him notice to produce it; Smith v. M'Clure, 5 East, 477; and, where the defendant had admitted that he owed the money due upon a bill which was in his own possession, Abbott, C. J., held that such admission might be given in evidence under the common counts without a notice to produce the bill. Fryer v. Brown, Ry. & M. 145. An admission of the handwriting of the defendant to his acceptance is prima facie evidence of the regularity of such acceptance, and it dispenses with production, unless there be a "saving of just exceptions ;" Chaplin v. Levy, 9 Exch. 531; 23 L. J., Ex. 117; cited ante, p. 71; and see Sharples v. Rickard, 2 H. & N. 57; 26 L. J., Ex. 302, where, in an action by indorsee against drawer, the court doubted whether on traverses only of presentment for acceptance and notices of dishonour, it was necessary to produce the bill. And where notice to produce must be given, see ante, pp. 7, et

seq.

The bill or note produced must appear to be the same upon which the plaintiff claims; and if any material variance exists, it will be fatal, unless amended by leave of the judge at Nisi Prius. Where a bill appears to be altered it lies upon the party producing it to show that the alteration was made under such circumstances as not to vitiate the instrument; Henman v. Dickinson, 5 Bing. 183; and it cannot be left to the jury on the mere inspection of the bill, without other proof, to decide whether it was altered at the time of making or at a subsequent period. Knight v. Clements, 8 Ad. & E. 215. Where a note payable in two months was dated, by mistake, January, 1854, instead of 1855, but crossed by the maker before delivery, "due 4th March, 1855," it was held that this operated as a correction, and that the note was rightly described as of 1855. Fitch v. Jones, 5 E. & B. 238; 24 L. J., Q. B. 293. See further as to alterations in a bill, ante, pp. 230, 231, and Defence, post, p. 360, et seq.

Variance in parties-Liability on the bill-Statute.] A nominal partner who is named in the bill must join in suing. Guidon v. Robson, 2 Camp. 302. By sect. 23, "No person is liable as drawer, indorser, or acceptor of a bill who has not signed it as such: Provided that

(1.) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name :

(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."

As to signature by agent, vide sect. 91, ante, p. 318.

By sect. 53, "(1.) The drawee of a bill who does not accept as required by this Act" (vide s. 17 (2), post, p. 329) " is not liable on the instrument." Sect. 24. "Subject to the provisions of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorised signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any 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.

Provided that nothing in this section shall affect the ratification of an unauthorised signature not amounting to a forgery."

See sect. 21 (1), ante, p. 321, as to the effect of notification by the drawee that bill is accepted; sect. 54 (1), post, p. 330, of the effect of acceptance; sect. 55 (1) (b), post, p. 342, of drawing; sect. 55 (2) (b) (c), post, p. 357, of

indorsing. See also sect. 60, post, p. 371, and sect. 82, post, p. 374, for the special protection of bankers.

Sect. 25. "A signature by procuration operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority."

66

By sect. 26 (1.) Where a person signs a bill as drawer, indorser, or acceptor, and adds words to his signature, indicating that he signs for or on behalf 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 as an agent, or as filling a representative character, does not exempt him from personal liability."

(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."

As to amendment in case of variance of parties, see ante, p. 86. As to signature on behalf of companies, vide post, pp. 376, 377.

By sect. 58 (2.) "A transferor by delivery is not liable on the instrument."

A person is not liable as acceptor who accepts by procuration for the drawee, but without his authority. S. C.; Eastwood v. Bain, 3 H. & N. 738; 28 L. J., Ex. 74. He is, however, liable for breach of warranty of authority, vide Action on warranty of Authority, post. And, if one of several partners accept a bill in his own name on behalf of the partnership, having no authority to bind the firm, he will be personally liable as acceptor. Owen v. Van Uster, 10 C. B. 318; 20 L. J., C. P. 61; Nicholls v. Diamond, 9 Exch. 154; 23 L. J., Ex. 1.

Variance in names, &c.] Although variances are now in most cases amendable, it has been thought as well to retain the cases as bearing upon other important points. Where initials or some contraction are used for a Christian name are used in the bill itself, the same initials or contraction may be used in the writ or statement of claim by 3 & 4 Will. 4, c. 42, s. 12; but, it may become necessary to identify the parties so designated, and, if the name is spelt wrongly, oral evidence is admissible to show who was intended. Willis v. Barrett, 2 Stark. 29. Where a bill is drawn with the payee's name in blank, and in the statement of claim it is stated that A. B. (a bona fide holder who has inserted his own name) was payee, it is no variance. Attwood v. Griffin, Ry. & M. 425. In an action against several joint makers of a note, it is no objection, on the ground of variance, that one of them, who has let judgment go by default, has been sued by a wrong Christian name; the identity of the party and service of the writ on him being shown. Dickinson v. Bowes, 16 East, 110. The name of a party to the bill may be stated as on the bill, though it be not the real name. Forman v. Jacob, 1 Stark. 47.

Variance in the place of payment.] If a bill is drawn payable at a particular place, this, as against the drawer, is part of the contract, and it is a variance to state it without that qualification; Bayley on Bills, 310; but, as against the acceptor, this is now, by reason of sect. 19 (post, p. 329), no variance, unless the bill be accepted payable at a particular place, and not "otherwise or elsewhere." So, where a bill was directed to "A. B., payable in London," payment in London was held part of the contract. Hodge v. Fillis, 3 Camp. 463. And, where a note contains, in the body of it, a promise to pay at a particular place, it is a variance to omit the place. Spindler v. Grellett, 1 Exch. 384; Vanderdonckt v. Thellusson, 8 C. B. 812; Sanderson v. Bowes, 14 East, 500. But, when the place of payment is only mentioned in

Variance.-Ambiguous and Irregular Instruments.

327

the memorandum at the foot of a note, it is no variance to omit it; Price v. Mitchell, 4 Camp. 200; Williams v. Waring, 10 B. & C. 2; and, this seems to be now settled, Masters v. Baretto, 8 C. B. 433, notwithstanding Trecothick v. Edwin, 1 Stark. 468, contra. And, the reason is not because a writing in the corner may not be part of a contract, but because by the usage of merchants it is a mere memorandum, there written for the convenience of parties. Per cur. Warrington v. Early, 2 E. & B. 766; 23 L. J., Q. B. 47. But, where a note was alleged to be payable at a certain place, and it was only made so payable by a memorandum at the bottom, Abbott, C. J., held it no variance; Hardy v. Woodroofe, 2 Stark. 319; Sproule v. Legg, 3 Stark. 157; and, the reason seems to be that, if payable generally, it is payable at the place named. Blake v. Beaumont, 4 M. & Gr. 7.

Variance in consideration.] The words "value received," in a bill payable to the drawer's order, mean value received by the drawee; and if he stated to be value received by the drawer, it is a variance. Highmore v. Primrose, 5 M. & S. 65; Priddy v. Henbrey, 1 B. & C. 674. But, where the bill is drawn payable to the order of a third person, " for value received," it is no variance to state that it was for value received "of the drawer." Grant v. Da Costa, 3 M. & S. 351. "Value received," in a note, imports value received from the payee. Clayton v. Gosling, 5 B. & C. 360.

Variance in the sum.] The money mentioned in the statement of claim on a bill means English money; if the bill is really for foreign money it is a variance. Kearney v. King, 2 B. & A. 301; Sprowle v. Legge, 1 B. & C. 16. By sect. 9 (2) "Where the sum payable," by a bill, is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the amount payable."

Ambiguous and irregular instruments.] Sect. 3 (1), ante, p. 319, defines a bill of exchange, and (2), enacts that an instrument not complying with the conditions therein stated is not a bill. See also sects. 6 (2) and 7 (2), ante, p. 320.

By sect. 5 (2)" Where in a bill drawer and drawee are the same person," (vide sect. 2, ante, p. 318) " or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note."

bill

By sect. 7 (3) "Where the payee is a fictitious or non-existing person the may be treated as payable to bearer."

The following instrument, "I promise to pay to J. B. or order," &c., signed "J. B." with J. G.'s name and address in the corner, and J. G.'s name written across it as an acceptance, and indorsed by J. B., may be treated by the holder as against J. B., as a note by him; Edis v. Bury, 6 B. & C. 433; and semble, at the holder's election as a bill of exchange. Id. "Pay without acceptance to the order of J. C. F.," signed by the manager on behalf of a joint-stock banking company at one place and addressed to the company at another, is, as against a partner in the company, a promissory note. Miller v. Thomson, 3 M. & Gr. 576.

The manager of an incorporated company wrote to the cashier thus: "53 days after date credit P., or order, with the sum of 500l, claimed per 'Cleopatra,' in cash on account of this corporation," signed by the manager. This was held to be a bill of exchange. Ellison v. Collingridge, 9 C. B. 570; 19 L. J., C. P. 268.

I promise to pay T. L. or order," signed H. O.: the name of the defendant was on the left corner, and his acceptance across it. Held, that T. L. might sue defendant on it as a bill of exchange. Lloyd v. Oliver, 18