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Claim on bill and original consideration.
3. For several years prior to the month of June, 1875, the plaintiffs had been in the habit of consigning goods to the defendant for sale as their agents, and the defendants had been in the habit of consigning to the plaintiffs for sale as their agents; and each party always received the price of the goods sold by him for the other; and a balance was from time to time struck between the parties and paid.
On the 1st of June, 1875, the moneys so received by the defendants for the plaintiffs, and remaining in their names, largely exceeded the moneys received by the plaintiffs for the defendants, and a balance of £— was accordingly due to the plaintiffs from the defendants.
4. On or about the 10th of June, 1875, the plaintiffs sent to the defendants a statement of the accounts between them, showing the said sum as the balance due to the plaintiffs from the defendants, and the defendants agreed to the said statement of accounts as correct, and to the said sum of £balance due by them to the plaintiffs, and agreed to pay interest on such balance, if time were given to them.
5. The defendants requested the plaintiffs to give them three
cumbent on the party who takes the security to remove by showing either that the party from whom he received it acted with the authority of the rest of his partners, or that he himself had good reason to believe so. (Leverson v. Lane, 13 C. B. N. S. 278 ; L. J. 32 C. P. 10; lleilbut v.
Neril, L. R. 4 C. P. 354; affirm. in Ex. Ch. L. R. 5 C. P. 478.) Directors
There is no implied authority in a director of a joint-stock company, of joint- not being a trading partnership, to accept bills on the part of the comstock, pany (Bramah v. Roberts, 3 Bing. N. Č. 963); nor is there any such mining,
authority in the directors of a mining company to bind the shareholders and railway by making notes or accepting bills. (Dickinson v. Valpy, 10 B. & C. companies 128.) A railway company incorporated in the usual manner cannot have no
draw, accept, or indorse bills (Bateman v. Mid-Wales Railway Co., L. R. power to
1 C. P. 499); nor has a company incorporated under the Companies Act, accept bills. 1862, this power, unless it is given by the memorandum and articles
of association. (Peruvian Railway Co, v. Thames and Mersey Marine Insurance Co., L. R. 2 Ch. 617.)
An agent accepting a bill must be careful to make the fact of his agency appear on the face of the bill, for the law is that an agent will be personally liable to third persons by drawing, indorsing, or accepting in his own name, unless he unequivocally show on the face of the writing that he signs only in a ministerial capacity. (See Thomas v. Bishop,
2 Str. 955; Open v. Pan Oster, 10 C. B. 318; Mare v. Charles, 25 L. J. Acceptance Q. B. 119.) Where an agent acting within his authority accepts a bill by agents. for his principal, the latter is of course bound ; but a person may be
bound though he has not himself accepted, nor has his agent done so for him, for if the drawee accredit the bill by acknowledging the handwriting of the acceptance to be his, before the plaintiff took it, he cannot afterwards exonerate himself by showing that the acceptance was forged. (Leach v. Buchanan, 4 Esp. 226.)
months' time for payment of the said sum of £-, and the Claim on plaintiffs agreed to do so upon the defendants accepting the bill and
original bills of exchange hereinafter mentioned.
considera6. The plaintiffs thereupon, on the 15th of June, 1875, drew tion. two bills of exchange upon the defendants, one for – and the other for £-, both payable to the order of the plaintiffs three months after date, and the defendants accepted the bills.
The said bills became due on the of September, 1875, and the defendants have not paid the bills, or either of them, nor the said sum of £
The plaintiffs claim £-, and interest until judgment. .
Indorsee against Acceptor of a Bill of Exchange (a). 1. Messrs. M. N. & Co., on the 1st day of May, 1876, drew Claim by a bill of exchange upon the defendant for £1000, with interest
against at the rate of 5 per cent. per annum, payable to the order of acceptor. the said Messrs. M. N. & Co., one month after date.
2. The defendant accepted the same.
4. The said bill became due on the 4th day of June, 1876, but the defendant has not paid it.
The plaintiff claims £1000, and interest at the rate of 5 per cent. from the date of the bill until judgment (6).
(a) The plaintiff's title to sue consists in this, that some holder of the What bill has indorsed it to him, and then delivered to him the bill with intent to necessary transfer the property. The intention to transfer the property in the bill to constiis essential, for the defendant may, if he can, show that the bill was tute title never delivered to the plaintiff as indorsee, but only as agent for another, by endorse(Adams v. Jones, 12 Ad. & E. 455,) or that it had been delivered to the ment. plaintiff, on a condition which had not been complied with. (Bell v. Ingestre, 12 Q. B. 317.) In the form given above there is only one indorser and one indorsee, the plaintiff; but it constantly happens in practice that on a bill there are several indorsers and several indorsees; and this being so, the question frequently arises whether in the statement of claim it is necessary to set out the fact of all the indorsements one after another. Previously to the Judicature Acts the rule was that where How enthe first indorsement was made in blank, the bill became payable to dorsement bearer, and the holder might then state an indorsement from the payee pleaded to himself directly, though there were intermediate special indorse- where inments (Walker v. Vacdonald, 2 Exch. 527); and it is submitted that termediate there is nothing in the new practice to alter the law on this point. transfers. Where, however, the first indorsement is not in blank, but is special indorsement, it will be necessary to aver an indorsement by the first indorsee, and so on until either an indorsement in blank by some indorser is obtained, or an indorsement direct to the plaintiff ; otherwise there wonld be a flaw in the plaintiff's title to sue on the bill. (6) In the absence of agreement, bills of exchange and promissory Interest on
Statement of Defence. 1. The bill of exchange mentioned in the statement of claim was drawn and accepted under the circumstances hereinafter stated, and except as hereinafter mentioned, there never was any consideration for the acceptance or payment thereof by the defendants.
2. Shortly before the acceptance of the said bill, it was agreed between the said Messrs. M. N. & Co., the drawers thereof, and the defendants, that the said Messrs. M. N. & Co. should sell and deliver to the defendants, free on board ship, at the port of - 2000 tons of coals, during the month of
-, and that the defendants should pay for the same by accepting the said Messrs. M. N. & Co.'s draft for £1000, at one month.
3. The said Messrs. M. N. & Co. accordingly drew upon the defendants, and the defendants accepted the bill of exchange now sued upon.
4. The defendants did all things which were necessary to entitle them to delivery by the said M. N. & Co. of the said 2000 tons of coal under their said contract, and the time for delivery has long since elapsed; but the said Messrs. M. N. & Co. never delivered the same, or any part thereof, but have
Interest on notes carry interest ; but there is an important distinction, as to the time bills. from which the payment of interest runs, between the cases where a bill
or note is expressly made payable with interest and the cases where the liability to pay arises by implication of law. The distinction is this, where the bill or note is expressly made payable with interest, it is payable from the date of the note, as in the above form (Richards v. Richards, 2 B. & Ad. 447); but where the instrument is silent as to interest, it is payable only from the time when the instrument became due. Upon a bill or note payable on demand generally, not specifying interest, interest is given from the time of demand proved (Blaney v. Hendricks, 2 W. Bl. 760 ; In re East of England Banking Co., L. R. 6 Eq. 368; affirmed, L. R. 4 Ch. 14); and where no demand is proved, from the issuing of the writ. (Pierce v. Fothergill, 2 Bing. N. C. 167.) The indorsee of a bill may sue the acceptor for interest although he has taken another bill from the defendant for the amount of the first,
which has been duly paid. (Lumley y. Musgrave, 4 N. C. 9.) Rate of The rate of interest allowed on inland bills is £5 per cent., unless interest another rate is mentioned in the bill or note. (Keene v. Keene, 27 L. J. chargeable. C. P. 88.) On foreign bills interest is recoverable at the rate of interest
at the place where the bill was drawn, accepted, or indorsed, as the case may be, according to the liability of the party sued. (Allen r. Komble, 6 Moore, P. C. 314; Gibbs v. Fremont, 9 Ex. 25.)
always refused to do so, whereby the consideration for the de- Defence fendant's acceptance has wholly failed.
sidera5. The plaintiffs first received the said bill, and it was first tion." indorsed to them after it was overdue.
6. The plaintiffs never gave any value or consideration for the said bill.
7. The plaintiffs took the said bill, with notice of the facts stated in the 2nd, 3rd, and 4th paragraphs hereof.
Reply. 1. The plaintiff joins issue upon the defendant's statement Reply. of defence.
2. The plaintiff gave value and consideration for the said bill in manner following, that is to say, on the
1876, the said Messrs. M. N. & Co. were indebted to the plaintiff in about £- the balance of an account for goods sold from time to time by him to them. On that day they ordered of the plaintiff further goods to the value of about £-, which last-mentioned goods have since been delivered by him to them. At the time of the order for such last-mentioned goods it was agreed between Messrs. M. N. & Co. and the plaintiff, and the order was received upon the terms, that they should indorse and hand over to him the bill of exchange sued upon, together with various other securities on account of the said previous balance, and the price of the goods so ordered on the said of 1876. Pursuant to such agreement, the said bill sued upon was thereupon on the same day indorsed and handed over to the plaintiff.
of bill pay.
Indorsee against Acceptor on a Bill accepted payable at a
particular place, and not elsewhere. 1. Messrs. A. B., on the 1st day of May, 1876, drew a bill Claim of exchange upon the defendant for £600, payable to the order against
acceptor of the said Messrs. A. B. one month after date. 2. The defendant accepted the said bill, making the same able at
particular payable at Messrs. J. C. & Co.'s banking house, L. Street, place. London, and not otherwise or elsewhere.
3. Messrs. A. B. indorsed the said bill to the plaintiff.
4. The said bill became due on the 4th of June, 1876, and on that day it was duly presented for payment at Messrs.
J. C. & Co.'s banking house, L. Street, London, aforesaid, and was dishonoured.
The plaintiff claims £100, and interest from the 4th of June, 1876, until judgment.
Indorsee against Drawer for Default of Acceptance (a). Claim 1. The defendant, on the 1st day of May, 1876, drew a bill against drawer for of exchange upon C. F. of Y., for £1000, payable to the order non-accept. of Messrs. H. F. Brothers, of B., one month after date. ance by drawee.
2. The said Messrs. H. F. Brothers indorsed the said bill to the plaintiff.
3. The said bill was duly presented to the said C. F., for acceptance; but he refused to accept the same.
(a) A presentment for acceptance is not necessary except in the case of bills payable at or after sight (Bayley on Bills, 6th ed. 215); and since the 33 & 34 Vict. c. 74, s. 2, assimilating bills and notes payable at and after sight in all respects to bills payable on demand, it is doubtful whether acceptance is even necessary in this case; hut as the drawee is not liable on the bill till he accepts it, it is always desirable as soon as possible to present the bill for acceptance that his name may be got on to it. The drawee may require that the bill should be left with him for twentyfour hours before determining whether he will refuse or accept (Van Diemen's Land, Bank of, v. Victoria, Bank of, L. R. 3 P. C. 526, 543), and even though the drawee may have put his name on to the bill, he may cancel
or revoke his acceptance before he parts with the bill. (Cox v. Troy, Present
5 B. & Ald. 474.) If the drawee refuse to accept the bill according to its ment for terms, an action on the bill lies against the drawer, or any indorser, imacceptance. mediately, although the time of payment is not come. (Milford v. Mayer,
1 Doug. 55; Whitehead v. Walker, 9 M. & W. 506.) But to ground the action
as against the drawer or any indorser, due notice of the refusal to accept must be given, and if notice is not given, the effect is that the parties liable on the bill are discharged. (Roscoe's Nisi Prius, 13th ed. 366.) In the statement of claim the presentment of the bill for acceptance, and the notice of dishonour must be distinctly averred as essential to the cause of action ; if they are excused on any ground the matter of
excuse must be specially averred. (Burgh v. Legge, 5 M. & W. 418, 421.) Present- As already stated, a bill payable at a certain time after sight or at ment of sight, must be presented for acceptance. This is necessary in order to bill payable fix the time of payment, for the sight by which the time of payment is a certain regulated, is that of the drawee when the bill is presented to him for time after acceptance. There is no rule requiring a bill to be presented for acceptsight. ance within so many days or weeks after it is issued, and it may very
well happen that a bill may circulate for some time and obtain on its back the names of half a dozen indorsers before it is seen by the drawee and before therefore it has been accepted. The only rule upon the subject is that the bill should be presented for acceptance within a reasonable time, but what a reasonable time is, depends upon the circumstances of each case, and is a mixed question of fact and law. (Mellish v. Rawdon, 9 Bing. 416; Mullick v. Radakissen, 9 Moo. P. C. 46. See also Chartered Mercantile Bank of India, Sc., v. Dickson, L. R. 3 P. C.