PART V. SS. 90, 91. Good faith. Signature. SUPPLEMENTARY. 90.-A thing is deemed to be done in good faith (a) within the meaning of this Act, where it is, in fact, done honestly; whether it is done negligently or not (b). (a) The words "good faith" occur in this Act in sect. 12; sect. 29, sub-sect. 1, b.; sect. 30, sub-sect. 2; sect. 59, sub-sect. 1; sect. 60; sect. 79, sub-sect. 2; sect. 80; sect. 82. (b) This point was decided in Raphael v. Bank of England, 17 C. B. 161; 25 L. J. C. P. 33; and in The Bank of Bengal v. Macleod, 7 Moore P. C. C. at p. 72 (dissenting from Gill v. Cubitt, 3 B. & C. 466, and Down v. Halling, 4 B. & C. 330, on this point); Brown v. Spofford, 5 Otto, Sup. Ct. U. S., 474, at p. 478. The negligence here mentioned must stop short of that alluded to by Parke, B., in May v. Chapman, 16 M. & W. 355, where he says:-"I agree that notice and knowledge' mean not merely express notice, but knowledge, or the means of knowledge to which the party wilfully shuts his eyes; Willis v. Bank of England, 4 A. & E. at p. 32; Swan v. North British Company, 2 H. & C. at p. 185. Such "wilful shutting of the eyes" would probably not come within this section. Gross negligence may be evidence of mala fides; but is not the same thing; per Lord Denman, in Goodman v. Harvey, 4 A. & E. at p. 876; also in Jones v. Gordon, 2 Ap. Cas. at pp. 625, 626, 628, 635. See also Ormsbee v. Howe, 41 Amer. Rep. 841. 91.-(1) When by this Act any instrument or writing is required to be signed by any person, it is not necessary that he should sign it with his own hand, but it is sufficient if his signature is written thereon by some other person by or under his authority (a). (2) In the case of a corporation, where, by this Act, any instrument or writing is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal. But nothing in this section shall be construed as requiring the bill or note of a corporation to be under seal (b). (a) As to the appointment and powers of an agent see sect. 24, note (b). In Lord v. Hall, 8 C. B. 627, it was held to be a question of fact whether a person who had authority to draw, accept, and indorse bills cannot select a third person to write the name of the principal. (b) As to the power of a corporation or company in relation to bills and notes, see sect. 22, note (c). By this sub-section a seal without signature is now sufficient. Therefore, it appears that now the bill or note of a corporation may be either signed, or sealed without any signature. SS. 91, 92, 93. Signature. 92. Where the time limited for doing any act or thing Computation is less than three days, in reckoning time, non-business days of time. are excluded. "Non-business" days for the purposes of this Act mean (a) Sunday, Good Friday, Christmas Day : (b) A bank holiday under the Bank Holidays Act, (c) A day appointed by Royal proclamation as 8 Any other day is a business day (z). (2) The definition of non-business days in this section applies to all the purposes of this Act. This section does not affect the days of grace, as it only applies to time, when such time is less than three days. As to the rule, when the last day of grace falls on one of the days above-mentioned, see sect. 14 of this Act and the notes thereto. equivalent to 93. For the purposes of this Act, where a bill or note When noting is required to be protested within a specified time or protest. before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting (a). (a) Noting a bill is in reality only the initial step in the protest; per Buller, J., in Leftley v. Mills, 4 T. R. at p. 175. As to the meaning of "noting a bill, see note (z) to section 51, and as to the meaning of "protest," see note (y) to section 51 of this Act. SS. 93, 94, 95, 96, 97. When noting equivalent to protest. Protest when notary not accessible. Dividend It has been decided that a protest may be drawn up and completed at any time, either before or after the commencement of an action on the bill, Chaters v. Bell, 4 Esp. 48; Geralopulo v. Wieler, 10 C. B. 690; 20 L. J. C. P. 105; or during the trial, Bull. N. P. 7th Edit. 272; Orr v. Maginnis, 7 East, 361; Byles on Bills, 13th Ed. 262. The protest may be extended as of the date of the noting, and ante-dated accordingly; see sub-section 4 of sect. 51 of this Act. 94. Where a dishonoured bill or note is authorised or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill. The form given in schedule 1 to this Act may be used with necessary modifications, and if used shall be sufficient (a). (a) Bayley on Bills, 6th Ed., p. 263; Parsons on Notes, vol. 1, pp. 633, 634. As to the meaning of "protest," and as to who a notary is, see note (y) to section 51. In America, it seems that the witnesses need not subscribe their names; Parsons, p. 633, note n. In France, by the Code de Commerce, all protests must be made by two notaries, or by one notary and two witnesses, or by a bailiff and two witnesses; Art. 173; Chalmers on Bills, 2nd ed., 151. 95. The provisions of this Act as to crossed cheques warrants may shall apply to a warrant for payment of dividend. be crossed. Repeal. Savings. 96. The enactments mentioned in the second schedule to this Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. 97.—(1.) The rules in bankruptcy relating to bills of exchange, promissory notes, and cheques, shall continue S. 97. to apply thereto notwithstanding anything in this Act Savings. contained (z). (2.) The rules of Common Law, including the lawmerchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to bills of exchange, promissory notes, and cheques. (3.) Nothing in this Act or in any repeal effected thereby shall affect— c. 97. (a) The provisions of the Stamp Act, 1870, or Acts 33 & 34 Vict. c. 89. (b) The provisions of the Companies Act, 1862, or 25 & 26 Vict. (c) The provisions of any Act relating to or confirm- (d) The validity of any usage relating to dividend (*) Though the law of bankruptcy is outside the scope of this treatise, still a few of the leading principles are here set out. Under the Bankruptcy Act, 1883, ss. 44, 168, if the lawful holder of a bill becomes bankrupt, the title thereto vests in his trustee in bankruptcy. As to proof on a bill of exchange, it can, says Lord Selborne in Ex parte Macredie, L. R. 8 Ch. Ap. at p. 537; 42 L. J. Bank. 90, only be admitted for that sum for which an action could have been maintained had there been no bankruptcy. The rights of the parties are the same as if no bankruptcy had happened. Hence, the rules as to notice of dishonour apply; but if the bill or note is dishonoured after the bankruptcy, notice may be given either to the bankrupt or to his trustee'; sect. 49, sub-sect. 10, of this Act; Ex parte Baker, 4 Ch. D. 795; 46 L. J. Bank. 60; 36 L. T. N. S. 339; 25 W. R. 454. Proof will not be allowed in respect of an acceptance in blank at the date of the receiving order, even though the transaction is bonâ fide; Ex parte Hayward, L. R. 6 Ch. Ap. 546; 40 L. J. Bank. 49; 24 L. T. N. S. 782; 19 W. R. 833. Proof will also be allowed of the usual expenses, such as protesting, re-exchange, posting and telegraphic messages, Prehn v. Bank of Liverpool, L. R. 5 Ex. 92; 39 L. J. Ex. 41; Ex parte Banco de Lima, 7 Ch. D. 637; 47 L. J. Ch. 67; 37 L. T. N. S. 599; 26 W. R. 232. Interest from the date of the bill being due to the date of the receiving order at 4 per cent. per annum, where no interest S. 97. Savings. is expressly reserved, may be proved for; Bankruptcy Act, 1883, sch. 2, r. 20. A creditor cannot prove his debt upon a bill or note without specifying it in the schedule to his affidavit; Bank Act, 1883, sch. 2, r. 2; form 52. See, however, Ex parte Jacobs, L. R. 17 Eq. 575; 43 L. J. Bank. 46; 22 W. R. 439; nor can he receive a dividend without exhibiting the bill or note to the trustee, and the amount of the dividend paid must be indorsed on it; Bankruptcy Rules, 1883, r. 176. There is one advantage that a holder gets in bankruptcy; he need not wait until the bill or note is due, but may prove upon it before it is due; Bankruptcy Act, 1883, s. 37, sub-s. 3; but in such a case interest at the rate of 5 per cent. per annum from the declaration of the dividend to the time at which the bill or note would have become payable must be deducted; Bankruptcy Act, 1883, sch. 2, r. 21. If a creditor has negotiated the bills or notes, he will not be allowed to prove against the acceptor's estate, as he is no longer the holder, and so no action would lie at law; Ex parte Macredie, L. R. 8 Ch. Ap. 535; 28 L. T. N. S. 827; 21 W. R. 535. The drawer of a bill is under no obligation to direct the drawee not to pay it, if the payee has become bankrupt before the bill matures, Em parte Richdale, 19 Ch. D. 409 ; 51 L. J. Ch. D. 462. A vote in respect of a current bill is not to be allowed, unless the creditor is willing to treat the liability of every person liable thereon antecedently to the debtor as a security in his hands, and to estimate the value thereof, and to deduct it from his proof, though only for the purposes of voting; Bank. Act, 1883, sch. 1, r. 11. (y) The material parts of the Stamp Act are set out in the Appendix. (x) By 8. 47 of the Companies Act, 1862 (25 & 26 Vict. c. 89), "a promissory note or bill of exchange shall be deemed to have been made, accepted, or indorsed on behalf of any company under this Act, if made, accepted, or indorsed in the name of the company by any person acting under the authority of the company, or if made, accepted, or indorsed by or on behalf or on account of the company by any person acting under the authority of the company." See the cases under this section collected in Buckley on the Companies Acts, 3rd ed. 138. As to the power of a company to issue bills, see s. 22 of this Act, note (c). See further sect. 26 of this Act, and the notes thereto. By sects. 41 and 42 of the Companies Act, 1862, the word "limited" must be written on the bill or note, if the Company is limited. The person neglecting to do so may be made personally liable thereon, Penrose v. Martyr, E. B. & E. 499; 28 L. J. Q. B. 28. Sect. 95 of the Companies Act, 1862, gives the official liquidator power to draw, &c., bills and notes, with the sanction of the Court; Orders of November, 1862, 0. 48. (v) As to the Acts affecting the Banks of England and Ireland, see Grant's Law of Bankers, 4th ed., chapters 34, 35, 36, & 37, pp. 305 et seq. |