(d.) Vide § 8 (4). A bill payable to order can only be negotiated by the indorsement of the holder-i.e., as defined in § 2, the payee or indorsee of the bill who is in possession of it. No one can be a bearer, in the sense of this Act, of a bill or note which is not payable to bearer, either originally or by indorsement, vide § 2. The indorsement of the person in possession of a bill payable to order therefore does not confer any right to the bill even upon a bona fide holder for value, unless the indorser have right to the bill through the indorsement of the payee. A forged signature confers no right on a bona fide holder for value. A bill may be negotiated by an agent having authority to indorse, vide § 25, or by an executor, Thomson on Bills, p. 145; or by the husband of the payee where the marriage is prior to the passing of the Married Women's Property (Scotland) Act, 1881, 44 & 45 Vict. cap. 21, § 1, Fraser on Husband and Wife, p. 697; or by a trustee in bankruptcy, 19 & 20 Vict. cap. 79, § 102. (d.) This subsection assimilates the law of Scotland to that of England. Formerly, where bills were handed to a person for valuable consideration, he acquired no title to them; but in England it was held that the transferee acquired an equitable title. In questions with creditors, the date of delivery of the unindorsed bill will determine whether the bill is reducible or not, 19 & 20 Vict. c. 79, § 6; but if the bill be subsequently indorsed, it is thought that the date of the indorsement will be held to be the date of delivery. (e.) To negative personal responsibility, it is not sufficient that the agent merely add to his signature words describing himself as an agent, or as filling a representative capacity. He must express that he is signing for another, or for the estate or office which he represents, vide § 26. He may also negative personal responsibility by adding the words "without recourse;" but the transferee is not bound to take such an indorsement, because it would deprive him of his recourse not merely against the agent or trustee, but also against the principal, or estate which he represents. $ 32. 32. An indorsement, in order to operate as a negotiation, must comply with the following conditions (a), Requisites namely: : (1.) It must be written on the bill itself, and be signed by the indorser. The simple signature of the indorser on the bill, without additional words, is sufficient (a). 66 An indorsement written on an allonge, or on a (3.) Where a bill is payable to the order of two or (4.) Where, in a bill payable to order, the payee or indorsee is wrongly designated, or his name is misspelt, he may indorse the bill as therein described, adding, if he think fit, his proper signature (e). (5.) Where there are two or more indorsements on a bill, each indorsement is deemed to have of a valid indorsement. $ 32. been made in the order in which it appears on the bill, until the contrary is proved (f). (6.) An indorsement may be made in blank or special. It may also contain terms making it restrictive (g). (a.) The formal requisites of an indorsement, whether made by or on behalf of the holder of a bill as defined in § 2, or by an indorser per aval, vide § 56, are (1.) It must be in writing or print, vide § 2. It may be in pencil, Geary v. Physic, 5 B. and C. 234. (2.) On the bill. An indorsement in a separate paper is not valid as a negotiation of the bill, but may entitle the person to whom it is given to demand from the person so assigning it delivery of the bill, duly indorsed. (3.) And signed by the indorser. See note (a) on § 3, and note (c) on § 17. (b.) The indorsement may be written on an "allonge". i.e., a slip of paper attached to a bill, when there is no room on the bill for further indorsations. 66 Copies" of a bill are not recognised in English or Scotch law, but are permitted in some foreign countries, by the law of which the requisites of a copy will be determined. By the law of Germany, a copy must be a transcript of the bill, with all the indorsements and markings thereon, and also a note that it is a copy, and that the original is to be found with a specified person, Allgemeine Deutsche Wechsel Ordnung, §§ 70-72. Although this subsection provides that an indorsement is deemed to be written on the bill itself, this does not mean that the holder of a "copy" with an original indorsement has all the rights of an indorsee on the bill. The copy is not deemed to be the bill, and without the bill the holder of the indorsed copy cannot demand acceptance or payment from the drawee, vide §§ 40, 44, 45; nor can he take recourse against prior indorsers other than his immediate indorser, because they only engage that the bill will be accepted and paid on presentation, and A copy is not to be confounded with a part of the bill (c.) This subsection forbids the payee of a bill indorsing a part of the amount payable in a bill, but does not prevent the holder, after receiving a partial payment, which ought to be noted on the bill, indorsing the bill for the balance; for the balance is the sum payable, I. Bell's Com. 427; nor does it prevent a bill being indorsed payable to two or more indorsees jointly, or, in the alternative, to one of two, or one or some of several indorsees, vide § 7 (2), § 34 (3). (d.) Even in the case of a partnership, all the partners must indorse, or grant authority to a copartner to indorse, where the firm is not one the business of which confers an implied power to indorse, Garland v. Jacomb, L. R. 8, Ex. 216. (e.) If the payee or indorsee so indorse without adding his proper signature, summary diligence will probably not be competent on the bill against him, because extraneous evidence will be required to show that he is the indorser. (f) This presumption will not be altered even where the indorsements are dated, though in this case less proof will probably be required to show the true order, and the date will be notice to a holder that the order on the bill is not the true order. (g.) Besides blank especial indorsements, vide § 34, and restrictive indorsements, vide § 35, there may be conditional indorsements, vide § 33. $ 32. indorsement. 33. Where a bill purports to be endorsed condi- Conditional tionally the condition may be disregarded by the $ 33. Indorsement payer, and payment to the indorsee is valid whether the condition has been fulfilled or not (a). (a.) This section alters the law to the effect of entitling the payer of a bill upon which there is a conditional indorsement to disregard the condition, see Thomson on Bills, p. 185. A conditional indorsement is not invalid. If it is in writing on the bill, it limits the rights of every subsequent indorsee, whether a holder for value or not, who, on failure of the condition upon which his right depends, will be bound to deliver up the bill to the indorser. Although parole evidence is rendered competent in certain cases by § 100, it will apparently still be held that it is not competent to prove by parole a condition which varies the contract in the indorsement, Abrey v. Crux, L. R. 5, C. P. 42; but parole evidence will be competent where the condition averred has the effect of suspending the commencement of the indorser's liability, or preventing the delivery of the indorsed bill taking effect till the occurrence of a specified event. 34. (1.) An indorsement in blank specifies no inspecial indorse- dorsee, and a bill so indorsed becomes payable to in blank and ment. bearer (a). (2.) A special indorsement specifies the person to whom, or to whose order, the bill is to be payable (b). (3.) The provisions of this act relating to a payee apply with the necessary modifications to an indorsee under a special indorsement (c). (4.) When a bill has been indorsed in blank, any holder may convert the blank indorsement into a special indorsement by writing above the indorser's signature a direction to pay the bill to or to the order of himself or some other person (d). |