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note (a) to section 2; note (2) to section 17; and note (z) to section SS. 63, 64, 21; see also Ingham v. Primrose, 7 C. B. N. S. 82.
Cancellation. (6) The cancellation of the name of an indorsee to whom a bill had been specially indorsed, and who after erasing his name transferred the bill by delivery, is immaterial; Fairclough v. Pavia, 9 Ex. 693, where all the authorities are discussed ; see further section 64 and the notes thereto.
(c) The mere fact of cancelling the signature of the makers of a dishonoured promissory note and writing “paid ” on the note, corrected before the note is sent back to the plaintiffs by a memorandum thereon “cancelled in error,” cannot be effectual to charge a bank with the receipt of the money, Prince v. Oriental Bank, 3 Ap. Cas. 325, following Warwick v. Rogers, 5 M. & G. 340, in which was approved Novelli v. Rossi, 5 B. & Ad. 757. 64.—(1.) Where a bill or acceptance is materially Alteration of
bill. altered (a) without the assent (b) of all parties liable on
Ind. Act, s. 87. the bill, the bill is avoided except as against a party who has himself made, authorised, or assented (c) to the alteration, and subsequent indorsers.
Where a bill has been materially altered, but the Ind. Act, s. 89. alteration is not apparent, and the bill is in the hands of a holder in due course, such holder may avail himself of the bill as if it had not been altered, and may enforce payment of it according to its original tenor (d).
(2.) In particular the following alterations are material (e), namely, any alteration of the date (f), the sum payable (g), the time of payment (h), the place of payment (1), and, where a bill has been accepted generally, the addition of a place of payment (k) without the acceptor's assent (1)
(a) Every written contract is avoided by an alteration in a material part; see Master v. Miller, 2 H. Bl. 141; 1 Smith, L. C. (8th Edition), 857; see also the cases in the notes to the same; the alteration discharges not only the liability on the bill but on the consideration also, Alderson v. Langdale, 3 B. & Ad. 660. But it has been held that a bill may at any time be altered in pursuance of the original intention of the parties, or for the purpose of correcting a mistake, Webber v. Maddocks, 3 Camp. 1 ; Kershaw v. Cox, 3 Esp. 246 ; Byrom v. Thompson, 11 A. & E. 31; Hamelin v. Bruck, 9 Q. B. 306; Bradley v. Bardsley, 14 M. & W. 873. See also the cases in notes (b), (e) and (9) hereto ; and in note (c) to the last preceding section.
Alteration of bill.
(6) As to material alterations made without the assent of the parties, see Kuill v. Williams, 10 East, 431; Perring v. Hone, 4 Bing. 28; Cowie v. Halsall, 4 B. & Ald. 197; Langton v. Lazarus, 5 M. & W.629; but in Sutton v. Toomer, 7 B. & C. 416, the alteration of the rate of interest, though made with the consent of the parties, was held to vitiate the instrument.
(c) As to alterations made with the consent of the parties, see Bathe v. Taylor, 15 East, 412; Sherrington v. Jermyn, 3 C. & P. 374; Stevens v. Lloyd, M. & M. 292 ; Cariss v. Tattersall, 2 M. & G. 890; approval will do as well as assent, Jacobs v. Hart, 6 M. & S. 142; so also request, Walter v. Cubley, 2 C. & M. 151. If altered before it is issued, a new stamp is not requisite ; Downes v. Richardson, 5 B. & Ald. 674; Wright v. Inshaw, 6 Jur. 857 ; Sherrington v. Jermyn, suprà.
(d) In Burchfield v. Moore, 23 L. J. Q. B. 261; 3 E. & B. 683, it was held that an unauthorised alteration of a bill discharges the acceptor, even as against a bona fide holder, subsequently taking it for value, and without notice of the alteration. But according to the present sub-section that case will not apply if the alteration is not apparent. The word “apparent” does not mean that the holder only should not have had the means of detecting the alteration ; but that if the party sought to be bound can at once discern by some incongruity on the face of the note, and point out to the holder that it is not what it was, that is to say, that it has been materially and fraudulently altered, the alteration is an “apparent” one, even though not obvious to all mankind; per Denman, J., in Leeds Bank v. Walker, 11 Q. B. D. 90.
(e) Any alteration of an instrument is material which alters the business effect of the instrument; it need not be such an alteration as affects the contract, Suffel v. Bank of England, 9 Q. B. D. 555. In addition to those mentioned in the preceding and following notes hereto, the following have been held material alterations, viz. : the addition of the name of a maker, Gardner v. Walsh, 5 E. & B. 83; 24 L. J. Q. B. 285; and cutting off the name of a maker, Mason v. Bradley, 11 M. & W. 590; the addition of a party as surety, Clerk v. Blackstock, Holt's N. P. C. 474. In a recent case it has been held that the alteration of the number of a Bank of England note is material, Suffell v. The Bank of England, 51 L. J. Q. B. D. 401; 9 Q. B. D. 555; where all the authorities are reviewed and discussed. As regards immaterial alterations, see Marson v. Petit, 1 Camp. 82 n.; Trapp v. Spearman, 3 Esp. 57; Kershaw v. Cox, 2 Esp. 246; Farquhar v. Southey, M. & M. 14; Attwood v. Griffin, 2 C. & P. 368; Calvert v. Baker, 4 M. & W. 417; Simmons v. Taylor, 4 C. B. N. S. 463; 27 L. J. C. P. 248; Walter v. Cubley, 2 Cr. & M. 151 ; Aldous v. Cornwall, L. R. 3 Q. B. 573; 37 L. J. Q. B. 201 ; London and Provincial Bank v. Roberts, 22 W. R. 402.
(f) See Master v. Miller, 2 H. Bl. 141; 1 Smith's L. C. (8th Edition) 857; Bowman v. Nicholl, 5 T. R.537; 1 Esp. 81; Sloman v. SS. 64, 65. Cox, 1 C. M. & R. 471; Outhwaite v. Luntly, 4 Camp. 179; Walton
Alteration of v. Hastings, 4 Camp. 223; Leykariff v. Ashford, 12 Moore, 281; bill. Cardwell v. Martin, 9 East, 190; Hirschman v. Budd, L. R. 8 Ex. 171; also the alteration of the date of a cheque, Vance v. Lowther, 1 Ex. D. 176.
(9) See Hamelin v. Bruck, 9 Q. B. 306. So also the addition of interest, Warrington v. Early, 2 E. & B. 763; 23 L. J. Q. B. 47. Again, the addition of a particular rate of exchange has been held to be material, Hirschfield v. Smith, L. R. 1 C. P. 340; 35 L. J. C. P. 177. The cases are collected in the notes to Master v. Miller, 1 Sm. L. C. (8th Ed.) 899. It has been held that a person who accepts a bill which has figures for the amount in the margin, but a blank in the body of it for such amount, holds out the person to whom it is entrusted as having authority to fill in the bill as he pleases within the limits of the stamp, and that no alteration of such marginal figures (which are only an index of the contents), however fraudulent, vitiates the bill as a bill for the full amount inserted in the body when in the hands of a bonâ fide holder for value without notice, Garrard v. Lewis, 10 Q. B. D. 30; 47 L. T. N. S. 408; 31 W. R. 475.
(h) See Paton v. Winter, 1 Taunt. 420; Alderson v. Langdale, 3 B. & Ad. 660; Brutt v. Picard, R. & M. 37; Bathe v. Taylor, 15 East, 412; Tarleton v. Shingler, 7 C. B. 812.
(j) See Jacobs v. Hart, 6 M. & S. 142; Stevens v. Lloyd, M. & M. 292; Cowie v. Halsall, 4 B. & Ald. 197; Tidmarsh v. Grover, 1 M. &
Treble, 2 Taunt. 328. (k) And this is so; even though after the addition of the place of payment, the acceptance is still a general acceptance, Macintosh v. Haydon, Ry. & M. 362; Desbrowe y. Wetherby, 1 Moo. & Rob. 438; Taylor v. Moseley, 1 Moo. & Rob. 439, n.; Cowie v. Halsall, 1 B. & Ald. 197; Calvert v. Baker, 4 M. & W. 417; Crotty v. Hodges, 4 M. & G. 561; Burchfield v. Moore, 23 L. J. Q. B. 261; 3 E. & B. 683; Hanbury v. Lovett, 18 L. T. N. S. 366; 16 W. R. 795.
(l) See Walter v. Cubley, 2 Cr. & M. 151.
ACCEPTANCE AND PAYMENT FOR HONOUR.
65.—(1.) Where a bill of exchange has been protested Acceptance for dishonour by non-acceptance (), or protested for better suprà protest. security (y), and is not overdue, any person not being a Ind. Act, s. 108. party already liable thereon, may, with the consent of the holder, intervene and accept the bill suprà protest, for the honour of any party liable thereon («), or for the honour of the person for whose account the bill is drawn (w).
Acceptance for honour suprà protest.
Ind. Act, ss. 108 & 109.
(2.) A bill may be accepted for honour for part only of the sum for which it is drawn (v).
(3.) An acceptance for honour suprà protest in order
acceptance for honour (t):
(4.) Where an acceptance for honour does not expressly state for whose honour it is made, it is deemed to be an acceptance for the honour of the drawer (s).
(5.) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for non-acceptance, and not from the date of the acceptance for bonour (r).
Ind. Act, s. 110.
(2) See Mitford v. Walcot, 12 Mod. 410, where the Court said that “if A. draws a bill upon B. and B. refuses to accept it, and C. offers to accept it for the honour of A., the drawee (or holder) need not acquiesce, but may protest; but if he do acquiesce, this acceptance
will bind C.” Ind. Act, (y) As to when and against whom a bill may be protested for better ss. 108 & 109. security, see sub-sect. (5) of sect. 51 of this Act and the notes thereto;
see also Ex parte Wackerbath, 5 Ves. 574, where there was an acceptance by the original drawee, and then an acceptance for the honour of the drawers after protest for better security. An acceptance for honour cannot properly be made until the bill has been protested for nonacceptance; 1 Parsons on Bills, 314; Hoare v. Cazenove, 16 East, 395.
(2) Save in the case of acceptances for honour or per procuration, no one can become a party to a bill quâ acceptor who is not an addressee, per Lord Watson in Steele v. McKinlay, 5 Ap. Cas. at
The difference between an acceptor and an acceptor for honour is that the former is absolutely liable, but the latter only if there has been a presentment of the bill to the drawees for payment, and a protest for non-payment, and that he receives notice of these facts; see sub-sect. (1) of sect. 66 of this Act and the notes thereto, see also Hoare v. Cazenove, 16 East, 391; 1 Parsons on Bills, 315; Story on Bills, s. 123.
(w) There may be successive acceptances for honour by as many persons as there are parties to the bill; each for the honour of one party; but there can be only one such acceptance for one person; 1 Parsons on Bills, s. 315 ; Story on Bills, s. 122.
(v) As an acceptance may be partial (sect. 19, sub-s. 2 (b)), so may an acceptance for honour.
(t) The method of accepting, suprà protest, is as follows, viz. : the SS. 65, 66, 67. acceptor, suprà protest, must personally appear before a notary public,
Acceptance with witnesses, and declare that he accepts such bill for honour, and for honour designate for whose honour he so accepts; and then he must subscribe suprà protest. the bill thus : “Accepted, suprà protest, in honour of A. B.," &c.; or, Ind. Act, ss. 108
& 109. as it is more usual: “Accepted, S. P;" 1 Parsons on Bills, 318.
(s) Vide Byles on Bills (13th Edit.), 268; 1 Parsons on Bills, 313.
(r) This is new; for hitherto the time has been computed from the date of the acceptance suprà protest, Byles on Bills (13th Edit.), 270; Williams v. Germaine, 7 B. & C. 468; 1 Parsons on Bills, 318.
66.—(1.) The acceptor for honour of a bill by accepting Liability of it engages that he will, on due presentment, pay the bill, acceptor for according to the tenor of his acceptance, if it is not paid Ind. Act, by the drawee, provided it has been duly presented for ss. 111 & 112. payment, and protested for non-payment, and that he receives notice of these facts (a).
(2.) The acceptor for honour is liable to the holder and Ind. Act, s. 111. to all parties to the bill subsequent to the party for whose honour he has accepted (6).
(a) The undertaking of the acceptor, suprà protest, is an undertaking to pay, if the original drawee, upon a presentment to him for payment, should persist in dishonouring the bill, and such dishonour be notified, by protest, to the person who has accepted for the honour of the indorser, per Lord Ellenborough in Hoare v. Cazenove, 16 East, 391; Williams v. Germaine, 7 B. & C. 468; Story on Bills, s. 261. The acceptor, suprà protest, is estopped from denying the genuineness of the signature of the drawer, if he has induced the plaintiffs to part with the money upon the faith of his authentication of the bill, Phillips v. Im Thurn, L. R. 1 C. P. 464. See Story on Bills, s. 262. As to where the protest must be made see sect. 51, sub-s. 6, and the notes thereto.
(b) Subject of course to the conditions required by the last preceding sub-section, which see, as also the notes to the same. See Story on Bills, s. 123; and he has his recourse over against the person for whose honour he accepted, and any parties liable to that person, see sect. 68, sub-s. 5, and the notes thereto; Story on Bills, s. 124.
67.—(1.) Where a dishonoured bill has been accepted Presentment to for honour suprà protest, or contains a reference in case of honour.
acceptor for need, it must be protested for non-payment before it is Ind. Act, s. 112. presented for payment to the acceptor for honour, or referee in case of need (a).