« 이전계속 »
SS. 54, 55.
Liability of acceptor.
Collman, 4 M. & G. 209; and Phillips v. Im Thurn, L. R. 1 C. P. 463; 35 L. J. C. P. 220; 18 C. B. N. S. 694; as to the capacity and authority of the drawer, see Porthouse v. Parker, 1 Camp. 82; Prince v. Brunatte, 1 Bing. N. C. 435; and Braithwaite v. Gardiner, 8 Q. B. 473.
(x) See Story on Bills, s. 113. The defendant by making a note payable to C. or order, intimates to all persons that he considers C. capable of making an order sufficient to transfer the property in the note; per Bayley, J., in Drayton v. Dale, 2 B. & C. 293, at p. 299; as the maker of note stands in the same position as the acceptor of a bill, the acceptor of a bill payable to C. or order would also be taken to admit C.'s power to make an order as above, as is provided by this sub-section; see also Smith v. Marsack, 6 C. B. 486; 18 L. J. C. P. 65; Pitt v. Chappelow, 8 M. & W. 616; Hallifax v. Lyle, 3 Ex. 446.
(w) The mere acceptance proves the drawing, but never the indorsement; per Parke, J., in Robinson v. Yarrow, 7 Taunt. 455; see also the judgment of Lord Tenterden, C.J., in Cooper v. Meyer, 10 B. & C. 468; the judgment of Parke, B., in Beeman v. Duck, 11 M. & W. 251; an acceptor, though he admits the authority of the
person drawing the bill to draw it, does not admit the authority of the same person to indorse it; per Blackburn, J., in Garland v. Jacomb, L. R. 8 Ex. 216.
(v) See Drayton v. Dale, supra.
(t) So held in Smith v. Chester, 1 T. R. 654; see also the judgment of Parke, B., in Robarts v. Tucker, 16 Q. B. 560. And this is so, notwithstanding that the indorsement was on the bill at the time it was accepted; Smith v. Chester, supra. Story on Bills, s. 412.
55.—(1.) The drawer of a bill by drawing it
Liability of (a) Engages that on due presentment it shall be drawer or accepted and paid according to its tenor, and that
Ind. Act, s. 30. if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it (x), provided that the requisite proceedings on dis
honour be duly taken (y); (b) Is precluded from denying to a holder in due
course the existence of the payee and his then Ind. Act,
capacity to indorse (@). (2.) The indorser of a bill by indorsing it, (a) Engages that on due presentment it shall be Ind. Act, s. 35.
accepted and paid according to its tenor, and that
ss. 120 & 121. S. 55.
or a subsequent indorser who is compelled to pay it (w), provided that the requisite proceedings on
dishonour be duly taken (v); (6) Is precluded from denying to a holder in due
course the genuineness and regularity in all respects of the drawer's signature and all previous
indorsements (t); (c) Is precluded from denying to his immediate or a
subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto (s).
Ind. Act, s. 122,
(2) As to the legal effect of drawing a bill, see Byles on Bills (13th Edit.), 3; and Chalmers' Digest of the Law of Bills of Exchange (2nd Edit.), 185. The drawer comes under an obligation to the holder to pay him, if the person on whom the bill is drawn does not accept and pay it, and the drawer has notice of dishonour, Steele v. McKinlay, 5 Ap. Cas. 769. The contract of the drawer is an undertaking that the acceptor shall pay the bill, per Lord Lyndhurst, C.B., in Siggers v. Lewis, 1 C. M. & R. 371; the acceptor is primarily liable, the drawer is liable only upon the contingencies of the acceptor's or drawee's making default, and of the holder's performing certain conditions precedent, such as presenting the bill, giving due notice of dishonour, &c.; per Cresswell, J., in Jones v. Broadhurst, 9 C. B. 181 ; see also the judgment of Parke, B., in Whitehead v. Walker, 9 M. & W. 516.
(y) As to the requisites on dishonour see sects. 48, 49, 50, 51, and 52, the sub-sections thereof, and the notes to the same.
(2) In Phillips v. Im Thurn, 18 C. B. N. S. 694, it was held that the acceptor supra protest of a bill of exchange, for the honour of the drawer, is, like the drawer himself, estopped from denying that the bill is a valid bill; and consequently it is not competent to him to set up as a defence to an action against him by an indorsee that the payee is a fictitious person, and that he was ignorant of that fact at the time he accepted the bill. The drawer is not precluded from denying the genuineness and regularity of the payee's indorsement, even though he has seen the bill with such indorsement, and does not object to it; Duncan v. Scott, 1 Camp. 101.
(w) “The contract of an indorser is an engagement by him that if the drawee shall not at maturity pay the bill, he, the indorser, will on due notice pay the holder the sum which the drawee ought to have paid, together with such damages as the law prescribes, or allows as an indemnity,” per Byles, J., in Suse v. Pompe, 8 C. B. N. S. 538, at p. 563; 30 L. J. C. P. 75, at p. 78; see also the judgment of Lord Selborne in Duncan Fox & Co. v. N. & S. Wales Bank, 6 Ap. Cas. at p. 13; the judgment of Brett, L.J., in Horne v. Rouquette, 3 Q. B. D. SS. 55, 56, 57. 519; and per Lord Blackburn in Steele v. McKinlay, 5 Ap. Cas. at p. 769; see further Byles on Bills (13th Edit.), 154; and Story on drawer or
Liability of Bills, s. 107. In a recent case it was held that the liabilities inter se indorser. of successive indorsers of a bill or note must in the absence of evidence to the contrary be determined according to the ordinary principles whereby a prior indorser must indemnify a subsequent one; but the whole circumstances may be looked at for the purpose of ascertaining the true relation of the parties to each other, Macdonald v. Whitfield, 8 Ap. Cas. 733.
(V) See note (y) to this section.
(t) See the judgment of Lord Campbell in MʻGregor v. Rhodes, 25 L. J. Q. B. 318; 6 E. & B. 266. This sub-section overrules the opinion expressed in The East India Co. v. Tritton, 3 B. & C. 280, that an indorser does not impliedly warrant the validity of prior indorsements. In America it has been held also that the indorsement is an implied warranty that the previous signatures are genuine, Turnbull v. Bowyer, 40 N. Y. Rep. 456.
(s) See the last preceding note hereto; Story on Bills, s. 110; see also sect. 74 of this Act and the notes thereto, title “ forged cheques," and“ altered cheques.”
56.-Where a person signs a bill otherwise than as Stranger signdrawer or acceptor, he thereby incurs the liabilities of ing bill liable an indorser to a holder in due course (a).
Ind. Act, s. 15.
(a) It was so laid down by Lord Blackburn in Steele v. M‘Kinlay, 5 Ap. Cas. at p. 772 where all the authorities are discussed. See also Macdonald v. Union Bank of Scotland, Court Sess. Cas., 3rd Series, vol. ii. 963; and Matthews v. Bloxome, 33 L. J. Q. B. 209 (where the defendant put his name on the back of a stamped paper, which was afterwards filled in as a bill for £50; held, that he was liable as an indorser); but see this case commented on in Steele v. McKinlay, 5 Ap. Cas. at p. 773; if a man write his name across the back of a blank bill-stamp, and the paper is afterwards improperly filled up,
he is liable as indorser; per Byles, J., in Foster v. Mackinnon, L. R. 4 C. P. at p. 712.
to dishonoured bill.
57.—Where a bill is dishonoured, the measure of Measure of
damages damages, wbich shall be deemed to be liquidated damages, against parties shall be as follows :
(1.) The holder (>) may recover from any party liable on the bill, and the drawer (y) who has been compelled Ind. Act, s. 117, to pay the bill may recover from the acceptor («), and sub-ss. (C) & an indorser (w) who has been compelled to pay the bill
Ind. Act. s. 117.
Measure of damages against parties to dishonoured bill. Ind. Act, s. 117, sub-s. (a). Indian Civil Procedure Code, s. 532. Ind. Act, s. 117, sub.-s. (a). Ind. Act, s. 117, sub-s. (b).
may recover from the acceptor or from the drawer, or
(a) The amount of the bill (v):
payment if the bill is payable on demand (t),
case (s) : (c) The expenses of noting (r), or, when protest is
necessary, and the protest has been extended, the
expenses of protest (9). (2.) In the case of a bill which has been dishonoured abroad, in lieu of the above damages, the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment (p).
(3.) Where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part (o), and where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper (n).
Ind. Act, s. 79.
(2) As to the rights of a holder see sect. 38 of this Act, and the notes thereto.
(y) See note (v) to sub-sect. (1) of sect. 3 of this Act, and sub-sect. (1) of sect. 55 of this Act, and sub-sect. (a) thereof, and the notes thereto.
(~) See note (a) to sect. 2 of this Act, and sect. 17 and the notes thereto, and also sub-sect. (1) of sect. 54 of this Act and the notes thereto.
(w) See sub-sect. (2) of sect. 55 of this Act and the notes thereto.
(v) This is a matter of course; see Deverill v. Burnell, L. R. 8 C. P. 475; 42 L. J. C. P. 214; 28 L. T. N. S. 874. And this, too, though the amount given for a bill or note be less than the actual amount of such instrument, provided such amount be given for the purchase of it; see note (e) to sect. 32 of this Act. But where the amount given is advanced upon the security of the bill, the amount so advanced can only be recovered ; see Re Gomersall, 1 Ch. D. 137. But if, in the case of the purchase of a bill, the amount
given for it is considerably less than the actual amount of the S. 57. bill, it will be an important element in considering whether the
Measure of person who gave the undervalue was acting bonâ fide, or was assisting damages in committing a fraud, though the under value per se will not be against parties sufficient to affect the title of the holder, Jones v. Gordon, 2 Ap. Cas. to dishonoured
bill. 632 (per Lord Blackburn).
(t) See Hudson v. Fawcett, 7 M. & G. 348; Lowndes v. Collins, 17 Ves. 27. Where there has been no other demand than the writ, interest runs from the service of such writ, Pierce v. Fothergill, 2 Bing. N. C. 167.
(s) See Parker v. Hutchinson, 3 Ves. 134; Cameron v. Smith, 2 B. & Ald. 305; In re Burgess, 2 Moore, 745; Laing v. Stone, 2 M. & R. 561; Keene v. Keene, 3 C. B. N. S. 144; 27 L. J. C. P. 88; Ackerman v. Ehrensperger, 16 M. & W. 103 (where it was held that a party who guarantees the payment of a bill is liable for interest in the same way as the principal would be); and Maxwell v. Tuohill, 1 L. R. Ir. 250. Where a bill is expressed to be payable with interest, until the maturity of the bill the interest is a debt; after its maturity, the interest is given as damages at the discretion of the jury, who may adopt, if they please, the rate of interest which the parties themselves had fixed; Keene v. Keene, supra, and so it is now provided by subsect. 3 of this section.
(r) Formerly the expenses of noting, except in actions under the 18 & 19 Vict. c. 67, have not been recoverable unless claimed as special damage ; see Kendrick v. Lomax, 2 C. & J. 405.
(9) See Suse v. Pompe, 8 C. B. N. S. 538; Prehn v. Royal Bank of Liverpool, L. R. 5 Ex. 92; 39 L. J. Ex. 41; 21 L. T. N. S. 830; 18 W. R. 463; Re General South American Co. Limited, 7 Ch. D. 637; 47 L. J. Ch. 67; 37 L. T. N. S. 599; 26 W. R. 232; in these last two cases the telegraphic expenses were also allowed.
(p) “Re-exchange is the difference in the value of a bill occasioned by its being dishonoured in a foreign country in which it was payable. The existence and amount of it depend on the rate of exchange between the two countries. The theory of the transaction is this: A merchant in London indorses a bill for a certain number of Austrian florins payable at a future date in Vienna. The holder is entitled to receive in Vienna, on the day of the maturity of the bill, a certain number of Austrian florins. Suppose the bill to be dishonoured. The holder is now, by the custom of merchants, entitled to immediate and specific redress, by his own act, in this way. He is entitled, being in Vienna, then and there to raise the exact number of Austrian florins, by drawing and negotiating a cross bill, payable at sight, on his indorser in London, for as much English money as will purchase in Vienna the exact number of Austrian florins, at the rate of exchange on the day of dishonour; and to include in the amount of that bill the interest and necessary expenses of the transaction. According to English practice,