397

CHAPTER XXVI.

OF THE LEGAL REMEDIES FOR AND AGAINST
PARTIES TO A BILL OR NOTE.

I. COLLATERAL REMEDIES 397 II. ACTION ON THE BILL

I.

Joinder of Causes of
Action

Venue

B.

CEDURE.

SUMMARY PRO

In the High Court,

under Ord. XIV. 413

Damages
Interest

BEFORE passing to the remedy by action on the bill, it is desirable to notice certain collateral remedies incidental to the position of the parties.

COLLATERAL
REMEDIES.

And firstly, cases may arise in which the bill needs To obtain rectification (a); or in which the due signature, indorse- rectification ment (b) or delivery (c) of a bill by one of the parties may completion of or compel be necessary to complete the contract, and give to another contract. party his full rights upon the bill. In such a case, provided that no adequate relief could be obtained in damages (d),

(a) Druiff v. Lord Parker, L. R. 5 Eq. 131; 37 L. J.. Ch. 241. (b) See Code, s. 31 (4). (c) Code, ss. 2, 21.

(d) See, for example, Er parte
Masterman, 4 Dea. & Ch. 751; 2
Mont. & A. 209; 4 L. J., N. S..
Bkey. 54.

CHAPTER

XXVI.

To recover possession of the bill.

the Court might be disposed, in order to avoid irreparable loss, to order the recusant party to perform his part (e). So, if the refusal be a breach of trust, he may be ordered to do the specific acts necessary to the discharge of his duty (f). And a judgment (g) or order (h) requiring any person to do any act other than the payment of money may be enforced by writ of attachment or committal. It is desirable to have a day specified in the judgment or order for doing the act to avoid delay in enforcing it (i). It is now further provided (k), that if a mandatory order for the specific performance of any contract be not complied with, the Court may direct that the act required be done by some other person at the expense of the disobedient party. And by the Judicature Act, 1884 (7), where any person neglects or refuses to comply with a judgment or order to execute any document, or to indorse any negotiable instrument, the Court may order that such document shall be executed, or negotiable instrument be indorsed by such person as the Court may nominate, and the document so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it (m).

Secondly, it may be that the bare possession of the instrument, as distinguished from the "delivery" necessary to complete the contract (n), is wrongfully withheld from the person entitled to be the holder. In such a case the aggrieved party might on a case of sufficient urgency or hardship obtain a mandatory order for the delivery to him of the document so wrongfully detained (0), or he may be left to the ordinary remedy by action in form corresponding to trover or detinue of former days.

Whether it be the mandatory order, or an ordinary judgment in the action that is obtained, execution may be by

defendant bound to indemnify plaintiff against all loss on a lost bill, and directing defendant within a given time to take up such bill, and pay the amount due thereon, see Seton, 1908; Goodier v. Lake, 1 Atk. 446.

(n) Code, s. 21, prov.

() As to the principles on which the Court acts in decreeing delivery of specific personalty, whether the claim rest on tort, trust or contract, see Fry, Sp. Perf. 3rd ed. par. 73-89.

XXVI.

writ of delivery without giving the defendant the option of CHAPTER retaining the property upon paying the value assessed (p). And the plaintiff may by the same writ have levied the damages and costs awarded and interest (q).

If, however, judgment in the action be in the alternative form, and the defendant elects to pay the value assessed, and retain the bill, it has been held that the effect of his doing so, is to divest the property out of the plaintiff, and to vest it in the defendant () as against the plaintiff (s), and that from the period of the conversion (†).

A payer for honour on paying to the holder the amount of the bill and the notarial expenses is entitled to receive both the bill itself and the protest. If the holder do not on demand deliver them up, he is liable by the express terms of the Code (u) to the payer for honour in damages.

Although the plaintiff should fail in an action of trover, or, it is presumed, in an action for damages under the provision just referred to, he might nevertheless succeed in an application to have the bill delivered up to be cancelled, since the relief in this case might depend upon different grounds (r).

And this brings us to the third class of cases in which To restrain relief is afforded between the parties collateral to their completion, negotiation or rights and liabilities on the bill. It is now established by enforcement a long series of decisions that the Court has jurisdiction of contract.

for the amount of the insurance;
but afterwards resisted an action
at law by the assured payee, on
the ground of fraud; it was held.
that his having established the
invalidity of the notes at law was
no defence to a bill in equity for
their delivery up and cancella-
tion, but rather a ground for
allowing the prayer. And, since
the Judicature Acts, the verdict
would probably be followed by
an order for their cancellation,
or, if the proceedings were com-
menced in the Chancery Division
for the delivery up, and an issue
was directed at law on the fraud,
and found for the plaintiff, the
Court, on return of the issue so
found, would now make the order.
See Thompson, B., at p. 650.
See, too, cases referred to in notes
to Ryan v. Mackmath, 3 Brown's
Rep. at pp. 16, 17; and ante,
Chapter TRANSFER, p. 210.

XXVI.

CHAPTER quia timet to restrain the indorsement, negotiation, or assignment of negotiable instruments wherever they have been obtained, or are held fraudulently or inequitably; the Court will also grant an injunction to restrain the putting in suit of such bills if applied to before they have passed to a holder in due course (y).

If the right of the applicant does not conclusively appear, or is dependent upon some issue which should be first determined, or on some condition which is unfulfilled, the order will be interlocutory or ad interim, that is, pending the trial of the issue or the happening of the condition, and is granted upon the applicant's undertaking, in the event of the injunction being ultimately dissolved, to pay any damages (2) which the Court thinks the opposite party may be entitled to for the restraint placed upon him in the interval.

If the right of the applicant is clear in the first instance, or there is no longer ground for the order being delayed, or where, though the parties are in pari delicto, yet public policy requires that the transaction should be quashed, e.g., gambling debt (a), the injunction would be made perpetual to restrain absolutely the indorsement, transfer, negotiation, acceptance or assignment, or putting in suit (as the case might be) of the negotiable instrument. And in such case if there is any such danger of the instrument passing into the hands of a holder in due course, and so becoming a cause of action, or of its being used as a means of vexatious litigation, the Court will go further and direct its delivery up for cancellation. If a note sued upon were shown to have been given for others which had not been surrendered, the Court, in giving judgment for plaintiff, would probably order the others to be delivered up for cancellation, and, in an American case, judgment was suspended till the original two notes were filed (b). But if the instrument is void on the face of it, it seems now established that the Court will not require its delivery up, as the danger cannot arise (c).

And generally, where the rules of judicial equity required, the Court would restrain an action on the bill, or the defendant in an action from availing himself of a legal defence (d).

(y) Ante, p. 209; Hawkins v. Troup, 7 T. L. R. 104.

(2) Graham v. Campbell, 9 Ch. D. 490; Smith v. Day, 21 Ch. D. 421; Griffith v. Blake, 53 L. J., Ch. 935.

(a) E. of Milltown v. Stewart,

3 My. & Cr. 18.

(b) Raisin v. Thomas, 88 N. C.

148.

(c) Simpson v. Ld. Howden, 3 My. & Cr. 97.

(d) See Queen of Portugal v. Glynn, 1 West, 258; Glynn v.

Though the jurisdiction and the principles on which

CHAPTER

XXVI.

it is exercised are illustrated by the cases above referred Effect of to, certain modifications in the mode of its exercise were Judicature introduced by the Judicature Acts in 1875. Acts.

Prior to that time, though equitable pleas (e) had been admitted, and power to enjoin in patent (f) and some other (g) cases had been given to the Common Law Courts (but only after injury had arisen), the granting of injunctions remained virtually the exclusive function of the Court of Chancery.

But the Judicature Act, 1873 (h), fused law and equity (i) and vested in the High Court the whole jurisdiction of the

Soares, 3 M. & K. 450; Hodgson v. Murray, 2 Sim. 515; Hood v. Ashton, 1 Russ. 412; 25 R. R. 93; Kidson v. Dilworth, 5 Price, 564 ; 19 R. R. 656; Druiff v. Lord Parker, L. R., 5 Eq. 131; 37 L. J., Ch. 241; Prothero v. Phelps, 25 L. J., Ch. 105; Agra and Masterman's Bank v. Hoffman, 34 L. J.,

Ch. 285.

(e) Where the defendant in an action would if judgment were obtained be entitled to relief upon equitable grounds, he was enabled by the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 84), to plead the facts which entitled him to such equitable relief by way of defence. This was the first step towards the complete fusion to be hereafter noticed. Restrictions were placed by judicial decision on the exercise of this power, which left circuity in many instances unremedied. Such a plea was only allowed where final justice could be done by the Court of law in the pending action. Wodehouse v. Farebrother, 25 L. J., Q. B. 18; 5 E. & B. 277; Wood v. Copper Miners' Company, 17 C. B. 561; Clarke v. Laurie, 26 L. J., Exch. 38; Drain v. Harrey, 17 C. B. 257; but see Chilton v. Charrington, 24 L. J., C. P. 153. And a defendant having so pleaded was not precluded from resorting to a Court of equity. Erans v. Bremridge, 2 Jur., New Series, 134; 25 L. J., Ch. 334; Prothero v. Phelps, 25 L. J., Ch. 105. But

B.B.E.

see Terrell v. Higgs, 26 L. J.,
Ch. 837.

(f) 15 & 16 Vict. c. 83,
s. 42.

(g) 17 & 18 Vict. c. 125, ss. 79 -82; amended by C. L. P. Act, 1860, ss. 32, 33.

(h) 36 & 37 Vict. c. 66, s. 16.

() Sect. 24, sub-s. 1, provides for the giving effect by the High Court and Court of Appeal to every equitable claim of relief by a plaintiff or petitioner, and sub-s. 2 for the like in respect of equitable relief claimed by defendants. And under this subsection any Division will give effect to such equitable grounds, at least so far as to allow them as a defence to the action (Mostyn v. West Mostyn Coal Co., 45 L. J., C. P. 401; 1 C. P. D. 145), or, if it be a division other than the Chancery Division, transfer the action to the Chancery Division under Ord. XLIX. r. 3. Holloway v. York, 2 Ex. D. 333 C. A. ; Hillman v. Mayhew, 1 Ex. D. 132. And transfer was refused, though rectification claimed, in Story v. Waddle, 4 Q. B. D. 289. See, too, Standard Discount Co. v. Barton, 37 L. T. 581; Mostyn v. West Mostyn Coal Co., 1 C.P.D. 145; Clements v. Morris, W. N. 1878, p. 4. See, also, Hughes v. Metropolitan Railway, 1 C. P. D. 120. 131, C. A.; Eyre v. Hughes, 2 Ch. D. 148; Marshall v. Marshall, 5 P. D. 19.

Equitable relief by counterclaim can now, in like manner, 26