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3. The plaintiff's name and address, and the amount of the Defence debts due to him, were duly inserted by the bankrupt in the continued. statement of his assets and debts, and all things required by the Bankruptcy Act and rules were done, so as to make the said proceedings valid and binding on the plaintiff ; and the defendant paid to the said trustee the amount of the composition on the debts due to the plaintiff and the plaintiff's right to sue in respect of any of the claims in respect of which he is suing in this action has been extinguished by the said proceedings in liquidation.
Reply. The plaintiff says that the defendant did not pay to the said Reply. trustee, within the time limited therefor or at all, the amount of the composition on the debts due to the plaintiff, and the plaintiff never has been paid the said composition, although the time for the payment of the same to the trustee and to the plaintiff had elapsed before the commencement of this action.
Defence that the Defendant's Affairs were Liquidated by
Arrangement. 1. On the
1877, after the time when the Defence of plaintiff's claim is alleged to have accrued, the defendant being liquidation
by arrangeunable to pay his debts, filed his petition in the County Court ment. of H., holden at N., and having jurisdiction in that behalf, praying for liquidation of his affairs by arrangement or composition.
2. Thereupon a special resolution of the defendant's creditors was duly passed at a meeting duly holden of the defendant's creditors that the defendant's affairs should be liquidated by arrangement, and that a person named should be appointed trustee of the defendant's estate.
3. This special resolution was registered in the said Court on the day of 1877, and the said person was duly appointed as trustee.
4. Such proceedings were had in the matter of the said liquidation, that on the
, 1877, the defendant duly obtained his discharge under the said liquidation, and the defendant duly obtained his certificate of such discharge in the
Defence of said liquidation duly given by the registrar of the said Court liquidation by arrange
all things necessary in that behalf having been fulfilled. ment. 5. The plaintiff's causes of action in the statement of claim Statute of mentioned (if any) did not, nor did any part thereof, accrue Limitations. within six years before this suit.
Reply. Reply. 1. If the allegations in paragraphs 1, 2, 3, and 4 of the
statement of defence are true, then the plaintiffs say that they were not included in the list of creditors delivered by the defendant to the registrar of the said County Court pursuant to the provisions of the Bankruptcy Act, 1869.
2. And if the allegations in the said paragraphs are true, the plaintiffs further say that notice of the first meeting of the creditors of the defendant under the said liquidation proceedings was not given to the plaintiffs pursuant to the provisions of the said Act. The plaintiffs neither voted nor proved their debt, nor received a dividend thereon, under the said liquidation proceedings, of which they have been always altogether ignorant.
3. The plaintiffs, as to paragraph 5 of the statement of defence, say that within six years before the commencement of this suit the defendant acknowledged, in writing, that the sum now sought to be recovered was due by him to the plaintiffs.
Bills of Exchange (a).
Payee of a Bill of Exchange against the Acceptor (). Statement 1. Messrs. A. B., on the 1st day of May, 1876, drew a bill of claim of exchange upon the defendant for £100, payable to the order payee against of the plaintiff one month after date. acceptor. Choice of (a) Choice of remedies.]—A party suing on a bill of exchange or promisremedies. sory note seems, since the Judicature Acts, generally, though not always,
to have three modes of procedure open to him. He may either (1) issue an ordinary writ, and in due course deliver a statement of claim, or (2) he can specially indorse his writ under Order III. r. 6, and then apply upon proper affidavits under Order XIV. r. 1, for leave to sign final judgment against the defendant, or (3) in a large class of cases he may still proceed against the defendant under the Bills of Exchange Act, 18 & 19 Vict. c. 67. The right of a party to pursue his remedy in a summary way under this Act is specially preserved by the new rules. Order II. r.
(8) For note (6) see post, p. 166.
2. The defendant accepted the same.
Statement 3. The bill became duè on the 4th day of June, 1876, and of claimthe defendant has not paid it.
against The plaintiff claims £100.
says: “ With respect to actions upon a bill of exchange or promissory note commenced within six months after the same shall have become dne and payable, the procedure under the Bills of Exchange Act, 18 & 19 Vict. c. 67, shall continue to be used. It has been held on this rule that where the action had been commenced under the Act, the special practice under the Act must be strictly followed, and plaintiff could not sign judgment in default of appearance without filing an affidavit of personal service. He cannot have recourse to Order IX. r. 6, nor can he obtain an order for substituted service under Order IX. r. 2 (Pollock v. Campbell, 45 L. J. Q. B., C. P. & Ex. D. 199; Anon. W. N. 1875, 248.) It must be noticed, however, that the procedure under the Act only Bills of Exchange Act only applies to the initiation of the action. If applies to the defendant obtains leave to defend, then the case goes on and the initiation procedure is exactly the same as in any other action. _(Norris v. of action Beazley, L. R. 2 C. P. D. 80; 46 L. J. Q. B., C. P. & Ex. D. 169, commenced 515.) But even with respect to the initial stages of the action before under it. the defendant has obtained leave to defend, the procedure where the writ is issued under this Act is not altogether unaffected by the new practice. Thus in the case of Oger v. Bradnum (1 L. R. C. P. D. 334 ; 45 L. J. Q. B., C. P. & Ex. D. 273), it was held that a writ under the Bills of Exchange Act may issue out of a district registry : and in another case where an action had been brought in the Sheffield registry, to which the defendant had appeared both in Sheffield and London, and had obtained leave to defend on paying £40 into Court, which he paid in, not in Sheffield but in London, judgment being signed and execution issued for noncompliance with the condition on defendant's application, it was held that by appearing in Sheffield, he had waived his right to object to the action being brought there, and he was therefore only allowed to defend on further conditions. (Ibbotson v. Whitworth, W. N. 1876, 10.)
Bills of Exchange Act.]—By this Act the holder or indorsee of a bill of Bills of exchange or promissory note or cheque (Eyre v. Waller, 29 L. J. Ex. 246), Exchange if he sues within six months after the same becomes due and payable, Act. is enabled to issue a special form of writ endorsed as directed by the Act; and unless the defendant obtains leave to defend the action, the plaintiff can, upon filing an affidavit of personal service of the writ, sign final judgment for the amount claimed by the writ together with interest and costs. The peculiarity of the remedy given the plaintiff is seen at a glance. The law presumes that the defendant is liable, and the burden is cast upon him of doing something at the very beginning of the action to obtain a hearing for his defence if he has one. Section 2 of the Act prescribes what the defendant is to do if he wishes to defend the action. * A judge of any of the said Courts (i.c., the superior Courts, though the Bills of Exchange Act is now extended to the County Courts, and in that case it will be the judge of the County Court) shall upon application within the period of twelve days from such service (the service of the writ upon the defendant), give leave to appear to such writ, and to defend the action on the defendant paying into Court the sum indorsed on the writ, or upon affidavits satisfactory to the judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem safficient to support the application and upon such terms as to security or otherwise as to the judge may seem fit." Then by the next
Payee of two Bills of Exchange against Acceptor, upon the bills,
and also on the consideration. Claim on 1. The plaintiffs are merchants, factors, and combill, and on the mission agents, carrying on business in London. original considera
section it is provided that the Court or a judge may under special cirtion.
cumstances set aside the judgment, and, if necessary, stay or set aside execution, and give leave to appear to the writ and defend the action. When the defendant obtains leave to appear and defend, the next step will be for the plaintiff to deliver a statement of claim. It was provided by R. G. H. T., 1858, that where a defendant obtained leave to defend under the Act the plaintiff might include in his declaration together with a count on the bill of exchange or promissory note (as the case may be), a count upon the consideration, if any, between the plaintiff and de
fendant for the bill of exchange or promissory note, and deliver a partiClaim on cular of demand accordingly. There is nothing in the new practice to bill may be abrogate this rule, and the effect will therefore be, that in actions under combined this Act, the plaintiff in his statement of claim, which takes the place of with claim the declaration mentioned in the rule, may insert allegations of fact on the which will enable him to claim alternatively, either on the bill or note, or original the consideration for it. But it is submitted that the plaintiff cannot, debt. when the writ is issued under this Act, combine under Order XVII. r. 1,
in his statement of claim, any claim in respect of any other cause of action. Though this remedy is only given to a plaintiff who proceeds within six months after the bill falls due, it has been decided that a writ issued under the Act more than six months after the bill or note is due, though irregular, is not void, and the irregularity may be waived by the defendant (Maltby v. Murrells, 5 H. & N. 813 ; 29 L. J. Ex. 377), or it may be amended by the Court or a judge. (Leigh v. Baker, 2 C. B. N. S. 367.)
A party proceeding under the Bills of Exchange Act has this ad. vantage over one who specially indorses his writ and proceeds under Order III. r. 6. In the former case the onus is cast upon the defendant of coming to the Court in the first instance, and upon his affidavits, obtaining leave to appear and defend, but in the latter case, it is the plaintiff who has to commence by filing an affidavit, verifying his debt and
asking for final judgment, and it is only then the defendant is called on Advantage to disclose facts entitling him to defend. Again, there is another not unin suing important difference between the two procedures. A party defending under Act. under the Bills of Exchange Act obtained an absolute right to defend by
paying into Court the sum indorsed on the writ; but in the case of a specially indorsed writ the defendant has no such right, and final judgment may be signed against him though he is willing to pay the money into Court. In practice, however, this would only in very exceptional cases be done ; and if the defendant's affidavits show anything like a bona fide defence, the inclination of the Court is always to admit him to defend. (See Berridge v. Roberts, W. N. 1876, 86; Runnacles v. Mesquita, L. R. 1 Q. B. D. 416; 45 L. J. Q. B., C. P. & Ex. D. 407 ; Lloyds' Banking Co. v. Ogle, L. R. 1 Ex. D. 262 ; 45 L. J. Q. B., C. P. &
Ex. D. 606.) Provision (b) By the 19 & 20 Vict. c. 97, s. 6, “No acceptance of any bill of as to mode exchange, whether inland or foreign, made after the 31st day of of accept
December, 1856, shall be sufficient to bind or charge any person, unless ance. the same be in writing on such bill, or, if more than one part of such bill, on one of such parts,
and copied by the acceptor or some person duly authorised by him." A drawee of a bill may accept conditionally, though the holder is not bound, as against previous parties, to take such 2. The defendants are merchants and commission agents, Claim on
bill and carrying on business at Hong Kong.
consideraacceptance (Petit v. Benson, Comb. 452); but if the acceptance was in tion. fact conditional, it will not support the allegation of an absolute acceptance though the condition has been performed. (Langston v. Corney, 4 Campb. 176 ; Swan v. Cox, 1 Marsh. 176.) If, however, the drawee Conditional has accepted on condition of an extension of time for payment, the acceptance. holder may sue as on a bill accepted payable at the postponed date. (Russell v. Phillips, 14 Q. B. 891.) There may be an acceptance of a Effect of bill before it is filled in, and an acceptance of a blank bill is an authority acceptance to the drawer to fill it up with any sum covered by the stamp (Armfield of blank V. Alport, L. J. 27 Ex. 42); and such acceptance binds the acceptor to bill. an innocent holder for value though the drawer may have issued the bill improperly, or after a lapse of twelve years (Montagu v. Perkins, L. J. 22 C. P. 187), and in such a case the Statute of Limitations is no defence. (S.C.).
A bill of exchange drawn generally may be accepted in either of the fol. Three lowing ways, viz., either generally, or payable at a particular banker's, or forms of at a particular banker's and not elsewhere. If the drawee accepts generally acceptance, he undertakes to pay the bill at maturity when presented to him. If he and effect accepts payable at a banker's, he undertakes to pay the bill at maturity of each. when presented either to himself or at the banker's. If he accepts payable at a banker's and not elsewhere, he contracts to pay the bill at maturity provided it is presented at the banker's, but not otherwise. (Halstead v. Skelton, 5 Q. B. 86 & 93.) It follows from this that it is only when the acceptor has made the bill payable at a particular banker's and not elsewhere, that in an action against him it is necessary to aver in the statement of claim and prove at the trial a presentment for payment at the place named. (Fayle v. Bird, 6 B. & C. 531.) In the case of a general acceptance, or even an acceptance payable on demand at a particular banker's, in an action against the acceptor, it is not necessary to aver and prove a presentment for payment; and it has even been held that if the holder neglects to present, and the banker's at whose house the bill is made payable generally fail with money of the acceptor in their hands, the acceptor is not thereby discharged. (Turner v. Hayden, 4 B. & C.1; Norton v. Ellam, 2 M. & W. 461.).
One partner in a trading partnership can bind his fellow partners Acceptance by accepting a bill in the name of the firm ; but the implied power of by partone partner to bind the others by his acceptance, or for the matter of ners. that, by his indorsement of bills, does not extend to partnerships other than for trading purposes, such as a firm of solicitors. (IIcdley v. Bainbridge, 3 Q. B. 316 ; Forster v. Mackreth, L. R. 2 Ex. 163.)
It has been held that where one partner accepts a bill intending to bind the partnership, it is necessary that he should have accepted in the name of the firm, so that the name of the firm appears on the face of the bill. An action cannot be maintained against the firm where one partner signs his own name only although the proceeds are in reality applied to partnership parposes (Nicholson v. Ricketts, L. J. 29 Q. B. 55), for no person whose name or the name of whose firm does not appear on the bill, can be made liable on it. (Beckam v. Drake, 9 M. & W. 79, 92, 96 ;
Miles' Claim, L. R. 9 Eq. 635.) The firm will be liable on the bill Where (that is, where it is accepted by a partner in their name) although partner the proceeds were not in fact applied to partnership purposes, and accepts in were never intended by the partner accepting the bill to be so applied, his own provided always the plaintiff was not a party to this fraud ; but the unex. name, firm plained fact that a partnership security has been received from one of not liable. the partners in discharge of a separate claim against him, is a badge of fraud, or of such palpable negligence as amounts to fraud, which it is in