Page images
PDF
EPUB

ance in the place where they are made, and where they are to be performed.

The law is thus laid down in England, when a bill is drawn generally, the liabilities of the drawer, acceptor and indorser respectively must be governed by the laws of the countries, where the drawing, acceptance and indorsement took place." The 'respectively' is said by Lush, J., to be "that is the liability of the acceptor on his contract, is governed by the law of the country in which the acceptance takes place.2 According to the section the liability of the maker or the drawer is governed by the law of the country where the instrument is made, that of the acceptor and indorser where it is payable. The contract of the acceptor is a contract to pay to any order, if valid according to the law of the country where the instrument is payable."

"The contract of the acceptor is, that he undertakes at the 66 maturity of the bill to pay to the person who shall be the holder "under an indorsement, from the payee, made according to the "law merchant; and the fact of an indorsement being made in a "foreign country does not alter the character of an inland bill, "and if the indorsement is in conformity with the law of the "C country where it is payable, it matters not where it is made."4 "It would be anomalous to say, that a contract made in this country, could be affected by the circulation and negotiation in "a foreign country, of the instrument by which the contract is "constituted. The original contract cannot be varied by the law "of any foreign country through which the instrument passes."5

66

When a bill was drawn and accepted in England, and indorsed in France, by an indorsement valid in England but which by the law of France would not give the indorsee a right to sue in his own name, it was held that the indorsee could sue the acceptor in England as the bill was payable in England. Where a bill was drawn and payable in France, and the indorsement was not made in conformity with French law, so as to authorize the indorsee to sue in his own name, the indorsee was held not

1 Allen v. Kemble, 6 Moo. P. C. per Lord Kingsdown at p. 321. 2 Lebel v. Tucker, L. R. 3 Q. B. at p. 82.

• Ibid., p. 83 per Mellor, J.;

see also Bradlaugh v. DeRin, L.
R. 5 C. P. 473.

Ibid., p. 84 per Lush, J.
Ibid., p. 86 per Lush, J.
6 Lebel v. Tucker, L. R. 3 Q.
B. 77.

Law of place of payment governs dishonor.

entitled to sue in England, as the interpretation of the contract was to be governed by the lex loci contractus.'

135. Where a promissory note, bill of exchange or cheque is made payable in a different place from that in which it is made or indorsed, the law of the place where it is made payable determines what constitutes dishonor and what notice of dishonor is sufficient.

ILLUSTRATION.

A bill of exchange drawn and indorsed in British India, but accepted payable in France, is dishonored. The indorsee causes it to be protested for such dishonor, and gives notice thereof in accordance with the law of France, though not in accordance with the rules herein contained in respect of bills which are not foreign. The notice is sufficient.

If a bill is dishonored by non-payment in a foreign country, and by the laws of that country there are regulations for giving notice of dishonor, in order to make the indorsers liable to the holder, a presumption is raised, that notice according to those regulations is all that the indorser should require, and the notice of dishonor according to that law, may be and ought to be deemed reasonable notice, according to the law of England and be sufficient in England, to entitle the holder to recover according to English law.2

4

As to Currie v. Rothschild, Cotton, L. J., in a subsequent case, said, "I am unable to agree with the reasons given by Lord Denman in deciding that case; although in the same case Brett, L. J.,3 said, “The rules and their application thus deduced were applied in the cases of Currie v. Rothschild and Hirschfield v. Smith," and he also referred to an American case, which he said was in accordance with the former.

6

3

When by the laws of the country where a bill is made payable, no notice of dishonor by non-acceptance is necessary (as in

Currie v. Rothschild, I Q. B.

43.

Horne v. Rouquette, 3 Q. B. D. at p. 523.

5 Ibid., at p. 520.

6 Aymar v. Sheldon, 12 Wendell, 439.

Trimbey v. Vignier, 1 Bing.
N. C. 157; but see Bradlaugh v.
DeRin, L. R. 5 C. P. 473.

Hirschfield v. Smith, L. R.
IQ. B. 340; S. C. 35 L. J. (Q.
B.) 177.

Spain), and the bill has been transferred by indorsement in England, and as between the indorser and first indorsee, the indorsee immediately on learning from his indorsee, that the bill has been dishonored by non-acceptance, gives notice of the dishonor to his indorser, but not within the time, for notice of dishonor, as, would be sufficient to preserve his right of recourse against him under English law, it was held the notice of dishonor was good, because the plaintiff (the first indorsee), was liable to his indorsee without notice of dishonor, and as he had given such notice to the defendant (his indorser) as he was entitled to by English law, viz., immediately on receiving notice himself, and that by indorsing the bill, the defendant must have anticipated the possibility of its being indorsed to a foreigner, and undertook by his indorsement to indemnify his indorsee, even though some links in the chain of indorsements, subsequent to his own, might not be such as to bind him, if they had been made in England, the plaintiff by his immediate notice had acted in conformity with the English law, and his indorsee within the Spanish law. Under the section no question could have arisen in the case, for as by the law of Spain, the place where the bill was payable, no notice of dishonor was necessary, the giving of notice by the plaintiff was superfluous.

made, &c., out

accordance

with its law.

136. If a negotiable instrument is made, drawn, Instrument accepted or indorsed out of British India, but in of British' accordance with the law of British India, the circum- India, but in stance that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or indorsement made thereon in British India.

137. The law of any foreign country regarding Presumption as to foreign law. promissory notes, bills of exchange and cheques shall be presumed to be the same as that of British India, unless and until the contrary is proved.

As to this section the Select Committee in their Report of 27th May 1878 point out, that it is strictly a question of evidence.

1 Horne v. Rouquette, 3 Q. B. D. 514.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

APPENDIX.

PROVISIONS OF

MISCELLANEOUS ENACTMENTS AFFECTING

NEGOTIABLE INSTRUMENTS.

THE INDIAN COMPANIES ACT.

(ACT VI OF 1882.)

§ 65. Every limited Company under this Act, whether limited by shares or by guarantee, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the Company is carried on, in a conspicuous position in letters easily legible, in the English language, and also if the registered office be situate in a district beyond the local limits of the ordinary original civil jurisdiction of a High Court, in one of the vernacular languages used in such district.

And shall have its name engraven in legible characters in such language or languages on its seal. And shall have its name mentioned in legible characters in such language or languages in all notices, advertisements, and other official publications of such Company, and in all bills of exchange, hundís, promissory notes, indorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of such Company, and in all bills of parcels, invoices, receipts, and letters of credit of the Company.

Publication of name by limited Company.

§ 66. If any limited Company under this Act does not paint Penalties on or affix, and keep painted or affixed, its name, in manner directed non-publica by this Act, it shall be liable to a penalty not exceeding fifty tion of name. rupees for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed.

Every director and manager of the Company who knowingly and wilfully authorizes or permits such default, shall be liable to the like penalty.

« PreviousContinue »