Payee of two Bills of Exchange against Acceptor, upon the bills, and also on the consideration. consideration. Claim on bill may be ccmbined with claim on the original debt. section it is provided that the Court or a judge may under special circumstances 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 defendant for the bill of exchange or promissory note, and deliver a particular of demand accordingly. There is nothing in the new practice to abrogate this rule, and the effect will therefore be, that in actions under this Act, the plaintiff in his statement of claim, which takes the place of the declaration mentioned in the rule, may insert allegations of fact which will enable him to claim alternatively, either on the bill or note, or the consideration for it. But it is submitted that the plaintiff cannot, 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 advantage 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 bonâ 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 as to mode of accept ance. (b) By the 19 & 20 Vict. c. 97, s. 6, "No acceptance of any bill of exchange, whether inland or foreign, made after the 31st day of December, 1856, shall be sufficient to bind or charge any person, unless 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 carrying on business at Hong Kong. bill and original considera acceptance (Petit v. Benson, Comb. 452); but if the acceptance was in tion. 4 Campb. 176; Swan v. Cox, 1 Marsh. 176.) If, however, the drawee Conditional A bill of exchange drawn generally may be accepted in either of the following ways, viz., either generally, or payable at a particular banker's, or at a particular banker's and not elsewhere. If the drawee accepts generally he undertakes to pay the bill at maturity when presented to him. If he accepts payable at a banker's, he undertakes to pay the bill at maturity 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.) Three forms of acceptance, and effect of each. 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. (Hedley 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 purposes (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 unexplained fact that a partnership security has been received from one of 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 name, firm not liable. Claim on bill and original considera tion. Directors of jointstock, mining, and railway companies 3. For several years prior to the month of June, 1875, the plaintiff's 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 £ as the 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; Heilbut v. Nevil, L. R. 4 C. P. 354; affirm. in Ex. Ch. L. R. 5 C. P. 478.) There is no implied authority in a director of a joint-stock company, not being a trading partnership, to accept bills on the part of the company (Bramah v. Roberts, 3 Bing. N. Ĉ. 963); nor is there any such authority in the directors of a mining company to bind the shareholders by making notes or accepting bills. (Dickinson v. Valpy, 10 B. & C. 128.) A railway company incorporated in the usual manner cannot draw, accept, or indorse bills (Bateman v. Mid-Wales Railway Co., L. R. 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.) have no power to 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; Owen v. Van 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.) Claim on months' time for payment of the said sum of £—, and the plaintiff's agreed to do so upon the defendants accepting the bill and bills of exchange hereinafter mentioned. original considera 6. 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). indorsee 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. 3. Messrs. M. N. & Co. indorsed the said bill to the plaintiff. 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 (b). What necessary to constitute title by endorsement. (a) The plaintiff's title to sue consists in this, that some holder of the bill has indorsed it to him, and then delivered to him the bill with intent to transfer the property. The intention to transfer the property in the bill is essential, for the defendant may, if he can, show that the bill was never delivered to the plaintiff as indorsee, but only as agent for another, (Adams v. Jones, 12 Ad. & E. 455,) or that it had been delivered to the 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. Macdonald, 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 a 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 would be a flaw in the plaintiff's title to sue on the bill. (b) In the absence of agreement, bills of exchange and promissory Interest on Defence 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 v. 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 v. Kemble, 6 Moore, P. C. 314; Gibbs v. Fremont, 9 Ex. 25.) |