Page images
PDF
EPUB

66

1

part with it to somebody who could sue for him ; that that “shifts the burden. That has been decided over and over again. “The consequence is, that the man who sues has, in that case, " the onus upon him to prove that he gave value. I should “be unwilling to say precisely, whether it shifts the onus upon “ him to show that he gave value bonâ fide, so that although " he gave value he must give some affirmative evidence to show “ that he was doing it honestly, or whether the onus of prov“ing that he is dishonest, or that he had notice of things that

were dishonest, remains on the other side, although he is “ bound to prove value. The language of the quotation from " Baron Parke would seem to show that the onus as to both is "shifted; but I do not think that has ever been decided. I “have no doubt, however, that in proving value, it may be

proved that he himself took the bill under such circumstances, " that although he gave value he could not sue upon it.”

(c.) In the case of a bill payable after date, Maule J., says, “ It is presumed, in the absence of evidence to the contrary, that “the bill was accepted not on the precise day on which it bears

date, but within a reasonable time after, and before action “brought. The question as to what is a reasonable time for "accepting, may depend on where the parties to the bill reside. “ If they live near each other the presumption is, that the bill “would be accepted immediately or very soon after the draw“ing.”

(9.) In a recent case in the Calcutta High Court, Garth, C. J. said, " I take it to be clear law, that when an instrument, “such as a Government promissory note has been stolen, the

person from whom it was stolen has a good title to it, not only "as against the thief, but as against any person who subsequent“ ly becomes the holder, unless such person can prove that the “instrument had become negotiable at the time it was stolen, "and that he obtained it bonâ fide for value without notice of “the theft;" and Pollock, C. B., said, 3 " Smith v. Braine, * seems

66

1 Roberts v. Bethell, i2 C. B. 778.

? Bank of Bengal v. Mendes, I. L. R. 5 Cal. at p. 665; see also Raphael v. Bank of England, 17 C. B. 161; S. C. 25 L. ). (C. P.)

3 Hall v. Featherstone, 27 L. J. (Ex.) 308; S. C. 3 H. & N. 284.

20 L. J. (Q. B.) 201 ; S. C. 16 Q. B. 244.

to have established the rule, that in an action on a bill, the proof “of circumstances of suspicion,' which might be left to a Jury

as evidence of fraud, is sufficient to call upon a plaintiff to show " that he is a holder for value. So where the defence pleaded

was, that the bill was issued by the defendant for the purpose “of its being discounted for himself, and that he had never had

any consideration for it, and that in fraud of him it was “indorsed to the plaintiff, without any consideration, proof that " the first holder had the bill to get it discounted for the defend“ant, and got it discounted for himself, representing that it was “ drawn for his own accommodation, was held to be such evidence “of fraud in the original issuing of the bill, as to cast the onus “ of proof on the plaintiff."?

The following quotation from a judgment of Lord Abingers shows the distinction to be drawn in cases of accommodation: bills, and those obtained by fraud : “ There is a substantial dis“ tinction between bills given for accommodation only, and cases of fraud, inasmuch as in the former case, it is to be presumed " that money has been obtained upon the bill. If a man comes “into Court without any suspicion of fraud, but only as the “ holder of an accommodation bill, it may be fairly presumed he " is a holder for value, the proof of its being an accommodation "bill is no evidence of want of consideration. If the defendant

says I lent my name to the drawer for the purpose of his “raising money upon the bill; the probability is that money was obtained

upon the bill. Unless therefore, the bill be con“nected with some fraud, and a suspicion be raised from its

being shown that something has been done with it, of an “illegal nature, as that it has been clandestinely taken away, or “ has been lost or stolen, (in which cases the holder must show “ he gave value for it), the onus probandi is cast upon the 6 defendant.”

66

119. In a suit upon an instrument which has Presumption. been dishonored, the Court shall, on proof of the

on proof of protest.

1 See also Bailey v. Bidwell, 13 M. & W. 73; S. C. 13 L. J. (Ěx.) 264; Harvey v. Towers, 6 Exch. 654 ; S. C. 20 L. J. (Ex.)

425 ; S. C. 5 Dowl. 77 ; see also
Fitch v. Fones, 5 E. & B. 238;
Heath v. Sansom, 2 B. & Ad.,
297 ; Hogg v. Skeen, 18 C. B, N.
S. 426; S. C. 34 L. J. (C. P.)
156.

318.

2 Mills v. Barber, 1 M. & W.

of instrument.

protest, presume the fact of dishonor, unless and

until such fact is disproved. Estoppel 120. No maker of a promissory note, and no against denying original validity drawer of a bill of exchange or cheque, and no

acceptor of a bill of exchange for the honor of the drawer shall, in a suit thereon by a holder in due course, be permitted to deny the validity of the instrument as originally made or drawn.

It is to be noticed that the ordinary acceptor, is omitted from this section, because by Sec. 117 of the Evidence Act,' an acceptor of a bill of exchange, may deny that the bill was really drawn by the person by whom it purports to have been drawn. The following extract from the judgment of Keating, J., shows the principle on which these estoppels are founded, he says, “ The principle upon which a man who accepts a bill is not " allowed to deny the validity of the instrument as originally “made or drawn, is within the rule established by Pickard v. Sears, 6 Ad. & E. 475, that if a man by his words or acts causes another to believe in the existence of a certain state of things, and induces him to act in that belief so as to alter his previous condition, the former is estopped from denying the “existence of such a state of things.”2 So where a forged bill was accepted for honor by the defendant, without knowledge of the forgery, and the plaintiff on the faith of the acceptance by the defendant, discounted the bill, it was held, that the defendant was estopped as against the plaintiff, from disputing that the drawer's signature was genuine.3 The omission of the ordinary acceptor is a divergence from the English law, which estops him upon the ground that he is bound to know the signature of the drawer4 but though this is the rule, it does not preclude him from denying the validity of an indorsement made by the drawer, 5 even it was on the instrument at the time

1 Act I of 1872.

2 Philips v. Im Thurm, L. R. i C. P. 463; S. C. 35 L. J. (C. P.) 220 ; see also Ashpitel v. Bryan, 3 B. & S. 474 ; S. C. 32 L. J. (Q. B.) 91; affd., 5 B.

& S. 723 ; S. C. 33 L. J. (Q. B.) 328.

3 Ibid.

4 Sanderson v. Coleman, 4 M. & Gr. 209.

5 Garland v. Facomb, L. R. 8 Ex. 216.

it was accepted.' Where the bill is accepted in blank for the purpose of being negotiated, and is afterwards filled in, with name and signature of a person as drawer and indorser, the acceptor, cannot as against a bona fide indorsee for value, adduce evidence to show that either the drawing or the indorsement is a forgery."

121. No maker of a promissory note and no Estoppel

against denyacceptor of a bill of exchange payable to, or to the ing capacity of order of, a specified person shall, in a suit thereon payee to by a holder in due course, be permitted to deny the payee's capacity, at the date of the note or bill, to indorse the same.

This section relates solely to estoppels, against the parties to a promissory note or bill of exchange denying the payee's capacity to indorse the same, at the time the instrument was made in his favor. The most common cases of incapacity, which have occurred are those of infancy, coverture, bankruptcy or insolvency. We have considered them all under Chapter III, Sec. 25. The principles upon which the rule is founded are those mentioned by Keating, J., and quoted under Sec. 120.

122. No indorser of a negotiable instrument Estoppel

against deny. shall, in a suit thereon by a subsequent holder, be ing signature permitted to deny the signature or capacity to con- prior party. tract of any prior party to the instrument.

By indorsing the bill, the defendant has admitted conclusively against himself, that there was a prior indorsement, which indorsement was absolutely necessary to give the bill negotiability, and to say the plaintiff is not entitled to sue the defendant upon the bill, and to recover upon would as it seems to me, be inconsistent with all the cases upon the subject.3

i Beaman v. Duck, 11 M. &

W. 455.

R. 387

2 L. & S. W. Bk. v. Wentworth, 5 Ex, D. 96; see Cooper v. Meyer,

10 B. & C. 468 ; S. C. 5 Moo. &

3 Macgregor v. Rhodes, 6 E. & B. 266. ; per Wightman, J.; S. C. 25 L. J., (Q. B.) 318.

CHAPTER XIV.

OF CROSSED CHEQUES.

Cheque crossed 123. Where a cheque bears across its face an generally.

addition of the words "and company” or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words “ not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally.

This chapter is taken from the English Crossed Cheques Act 1876 (39 & 40 Vict. c. 81). This section corresponds with Sec. 4. The following remarks of Lord Chancellor Cairns show in concise terms the effect of crossing a cheque : “It imposes a “caution at least upon the Bankers, and further by its express "words, alters the mandate, and the customer, the drawer, is “entitled to object to be charged with it if paid contrary to the " altered direction." The case was one where the payee (Sec. 7), who would also (Sec. 8), be the holder and under Sec. 125 entitled to make the crossing. The learned Judge in the same case also said, “The prohibition of payment except to a Banker, “is for the direct benefit of the drawer, who might object to be " debited with it, as having been paid contrary to his mandate," and that the crossing did not restrain its negotiability (Sec. 130). The section is a definition of what is a general crossing. Byles 3 says of the provision introduced by Sec. 130, (Sec. 12 of the English Act) that “it introduces “not negotiablecheques

i Smith v. Union Bk., 1 Q. B. D. at p.35; S. C. 45 L.J. (9. B.) 149.

· Ibid. ; see Bellamy v. Marjoribanks, 7 Exch. 389; S. C. 21 L. J.

(Ex.) 70; Carlon v. Ireland, 5 E. & B. 765; S. C. 25 L. J. (Q. B.) 113

Byles on Bills, 13th ed. p. 26.

« PreviousContinue »