the genuineness of his signature: his capacity and authority to draw the bill: In the case of a bill payable to the drawer's order; the then capacity of the drawer to indorse, but not the In the case of a bill payable to the order of a third person; his then capacity to indorse, but not the genuineness Hence the acceptor cannot be admitted to prove that the drawer's signature was forged (a); or to say that the payee being a bankrupt could not indorse (b), or even to say that a second bankruptcy before the acceptance precluded him from indorsing, though the effect of such second bankruptcy were to vest, ipso facto, all the bankrupt's property in his assignees (c). Neither can the acceptor be allowed to defeat the indorsement by setting up the infancy of the payee (d). Nor can the acceptor plead that the drawer to whose order the bill was made payable, being a corporation, had no authority to indorse (e); nor that the drawer was a married woman, although as the husband might sue or indorse, the consequence might be that the acceptor might possibly be compelled to pay the bill twice (f). Nor that the drawing (and first indorsing) were in the name of a deceased person (g). But the acceptance of a bill drawn and indorsed in the name of a really existing person is no admission of the handwriting of the indorser (h), unless at the time of the acceptance the drawee knew of the forgery, and intended that the bill should be put into circulation by a forged indorsement (i). And the acceptance of a bill (a) Code, s. 54; Price v. Neal, 3 Burr. 1354; 1 W. Bl. 390; Porthouse v. Parker, 1 Camp. 82; Prince v. Brunatte, 1 Bing. N. C. 435; 1 Scott, 342; 3 Dowl. 382; Wilkinson v. Lutwidge, 1 Stra. 648; Jenys v. Fawler, 2 Stra. 946, and see Bass v. Clive, 4 M. & Sel. 13; 4 Camp. 78; Phillips v. Im Thurn, L. R., 1 C. P. 463; 35 L. J. 220; Garland v. Jacomb, L. R. 8 Ex. 216. In L. & S. W. Bank v. Wentworth, L. R., 5 Ex. D. 96, it was held that he admitted the drawer's indorsement as well, but this decision was anterior to the passing of the Code. (b) Drayton v. Dale, 2 B. & C. 293; 3 D. & Ry. 534; Braithwaite v. Gardiner, 8 Q. B. 473. (c) Pitt v. Chappelow, 8 M. & W. 616. (d) Taylor v. Crocker, 4 Esp. 187; Jones v. Darch, 4 Price, 300. Code, s. 22. (e) Halifax v. Lyle, 19 L. J., Exch. 197; 3 Exch. 446. (f) Smith v. Marsack, 18 L. J., C. P. 68; 6 C. B. 486. (g) Ashpitle v. Bryan, 32 L. J., Q. B. 91; 3 Best & S. 474; affirmed in error, 33 L. J., Q. B. 328. (h) Smith v. Chester, 1 T. R. 655; Carvick v. Vickery, Doug. 2nd ed. 653, n. 134. (i) Beeman v. Duck, 11 M. & W. 251. CHAPTER CHAPTER Where drawee precluded from disput. ing accept ance. Forged purporting to be already indorsed by the payee, not being the drawer is no admission of the genuineness or validity of the indorsement (j); and the law is the same though the bill be payable to the drawer's own order (k). So where the drawing is by procuration, the authority of the agent to draw is admitted, but not his authority to indorse (). But where the bill is drawn in a fictitious name, the acceptor undertakes to pay to an indorsement by the same hand (m). A plea to the jurisdiction only of an inferior court, though admitting the allegations of acceptance, notice of dishonour, &c., does not admit that they took place within the jurisdiction (n). A forgery is incapable of ratification (0), but if the drawee has once admitted that the acceptance is in his own handwriting, and thereby given currency to the bill, he cannot afterwards exonerate himself by showing that it was forged (p). By paying one forged acceptance a man is not estopped acceptance. from setting up that defence in the case of another similar bill (q). Obligation to When goods or bills of lading are sent to the consignee accept. accompanied by a bill of exchange for his acceptance, he must accept the bill before he can acquire or transfer any property in the goods or bills of lading (r). So when a cheque was sent in respect of a promised renewal, the (7) Tucker v. Robarts, 18 L. J., Q. B. 169; 22 L. J., Q. B. 270; in error, 16 Q. B. 560. (k) Story on Bills, p. 489; but see a dictum of Patteson, J., in Tucker v. Robarts, supra; Beeman v. Duck, supra; Garland v. Jacomb, L. R., 8 Ex. 216. (1) Robinson V. Yarrow, 7 Taunt. 455; 1 Moore, 150; see ante, p. 36. (m) Cooper v. Mayer, 10 B. & C. 468; 5 M. & R. 387; Beeman v. Duck, 11 M. & W. 251; and see Taylor v. Croker, 4 Esp. 187: Bass v. Clive, 4 M. & S. 13; 4 Camp. 78. See Phillips v. Im Thurn, 35 L. J., C. P. 220; L. R., 1 C. P. 463. It seems that a bill drawn and indorsed in a fictitious or forged name, to the knowledge of the drawer, should be declared on as payable to the bearer. See Phillips v. Im Thurn, ante, and Beeman v. Duck, 11 M. & W. 251. Code, s. 7 (3). (n) Sewell v. Cheetham, L. R., 9 C. P. 420. (0) Brook v. Hook, L. R., 6 Exch. 89; 40 L. J. 50. (p) Leach v. Buchanan, 4 Esp. 226; so held by Lord Ellenborough. Mere silence after knowledge does not create an estoppel. McKenzie v. British Linen Co., L. R., 6 Chan. Ap. 82. (g) Morris v. Bethell, L. R., 5 C. P. 47. (r) Shepherd v. Harrison, I R., 5 H. L. 116; 40 L. J., Q. B. 149. acceptor cannot take the cheque without renewing the CHAPTER acceptance (s). XVI. In alluding to excuses for notice of dishonour, the Code in sect. 50 (2) c. (4) uses the phrase-when the drawee or acceptor is, as between himself and the drawer, under no obligation to accept or pay; and in excuses for due presentment for payment in sect. 46 (2) c, the phrase—where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay, and the drawer has no reason to believe that the bill would be paid if presented; both these probably cover much the same ground as the expression formerly used, that the drawer was not entitled to expect due presentment or notice of dishonour where he had neither any effects in the drawee's hands at the time, nor a reasonable probability of there being such. An obligation to accept or pay can only arise from a contract express or implied, as has been noticed in the case of a banker's obligation to honour his customer's cheque; but still, whenever the drawer is reasonably justified in supposing that the bill will be duly accepted or paid, whether from the state of accounts or any other relation between himself and the drawee, he will probably be entitled to expect both. TEST OR FOR HONOUR. When acceptance is refused, and the bill is protested for ACCEPTANCE non-acceptance, or where a bill has been protested for SUPRA PRObetter security and is not overdue, any person not being liable thereon may, with the consent of the holder, intervene and accept the bill supra protest, for the honour of any party thereto, or for the honour of the person for whose account the bill is drawn. There may be a partial acceptance for honour. If the acceptance does not state for whose honour it is made, it will be deemed to be for the honour of the drawer (a). Though, as we have seen, there cannot be two or more Referee in drawees in the alternative, or in succession, yet the drawer case of need or indorser may insert in the bill the name of a person to whom the holder may resort if the bill is dishonoured by non-acceptance or non-payment. (s) Torrance v. Bank of British North America, L. R., 4 P. C. 246. (a) Code, s. 65 (1). Protest has always been necessary whereon to found an acceptance for honour. Vandewall v. Tyrrell, M. & M. Such person is called 87; Geralopulo v. Wieler, 10 C. B. CHAPTER the "referee in case of need," and resort to him is optional on the part of the holder (b). XVI. Contract of An acceptance supra protest must be written and acceptor signed on the bill, and indicate that it is an acceptance supra protest. for honour (c). Presentment to acceptor for honour. An acceptance for honour is liable on the bill to the holder, and to all parties to the bill subsequent to the one for whose honour he has accepted. He engages that he will, on due presentment, pay the bill according to the tenor of his acceptance on the drawee's default, provided it be duly presented to the drawee and protested for non-payment, and that he receive notice of these facts (d). Protest for non-payment is required before the bill can be presented either to the acceptor for honour, or the referee in case of need; and also, again, in case of dishonour by the acceptor for honour (e). Where the acceptor for honour lives where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; if elsewhere, then forwarded to him within the same time; but failure or delay in so presenting will be excused by any circumstance which would excuse failure or delay of presentment for payment (f). The maturity of a bill accepted for honour is now calculated from the date of noting and protesting for dishonour, and not from the date of acceptance for honour ( g). (b) Code, ss. 6 (2) and 15. Protest for non-acceptance is not mentioned as being required when the holder has recourse to a referee in case of need, but protest for non-payment is. Sect. 67 (1). A referee in case of need seeming to be more an agent to pay the bill than an alternative drawee. A referee in need appointed by an indorser, though an agent to pay the bill, is not agent to receive notice of dishonour. In re Leeds Banking Co., L. R., 1 Eq. 76; 35 L. J., Ch. 33 (c) Sect. 65 (3). The full form should be "accepted supra protest for the honour of A.," B': but more commonly "accepts S. P.," B': Beawes, 38. (d) Sect. 66. An acceptor, S. P., admits the genuineness of the signature of the party for whose honour he accepts, and is bound by any estoppel binding on such Code, ss. 67 (2) and (3), and 46. The 6 & 7 Will. 4, c. 58 (now repealed) contained the same provision as to time of presentment to acceptor supra protest or referee in case of need. (g) Code, s. 65 (5). So formerly, Williams v. Germaine, 7 B. & C. 468; 1 M. & R. 394. The method of accepting supra protest is said to be as CHAPTER follows, viz. the acceptor supra protest must personally XVI. appear before a notary public, with witnesses, and declare Mode of such that he accepts such protested bill in honour of the drawer or indorser, as the case may be, and that he will satisfy the same at the appointed time; and then he must subscribe the bill with his own hand (h) acceptance. Any person not already liable on it may accept a bill Who may so supra protest and the drawee himself, though he may accept. refuse to accept the bill generally, may yet accept it supra protest for the honour of the drawer or of an indorser (i). And though we have seen that, after one general acceptance, there cannot be another acceptance (k), yet, when a bill has been accepted, supra protest, for the honour of one party, it is said that it may, by another individual, be accepted, supra protest, for the honour of another (1). In no one case is the holder obliged to take an acceptance for honour (m). The holder of a dishonoured bill, who is offered an Conduct acceptance for the honour of some one of the preceding which holder parties to the bill, should first cause the bill to be pro- should pursue. tested, and then to be accepted, supra protest, in the manner above described. At maturity he should again present it to the drawee for payment, who may, in the meantime, have been put in funds by the drawer for that purpose. If payment by the drawee be refused, the bill should be protested a second time for non-payment (n), and then presented for payment to the acceptor for honour (o). Doubts having arisen as to the day when the bill should be again presented to the acceptor for honour, or referee in case of need, for payment, the 6 & 7 Will. 4, c. 58 (now repealed), enacted, that it should not be necessary to present, or in case the acceptor for honour or referee live at a distance, to forward for presentment, till the day (h) The Code does not expressly require the services of a notary for acceptance, S. P., though it does for payment, S. P. Sect. 68 (3). (i) Beawes, 33. And it has been held in America that it is no objection that the acceptor supra protest takes the guarantee of the drawee. Byles on Bills, 6th American edition, 403. (k) Jackson v. Hudson, 2 Camp. 447. (1) Beawes, pl. 42. See ante, p. 254. (m) Mutford v. Walcott, 12 Mod. 410; 1 Ld. Raym. 575, S. C.; Beawes, 37; Gregory v. Walcup, Comb. 76; Pillans v. Van Mierop, 3 Burr. 1663. (n) Hoare v. Cazenove, 16 East, 391. (0) Williams v. Germaine, 7 B. & C. 477; 1 M. & R. 394. |