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CHAPTER XIII.

SPECIAL RULES OF EVIDENCE.

ments

118. Until the contrary is proved, the following presump- Presump

tions as to tions shall be made :

negotiable (a) that every negotiable instrument was made or drawn for instruconsideration, and that every such instrument, when it has

of considerbeen accepted, indorsed, negotiated or transferred, was accepted, ation; indorsed, negotiated or transferred for consideration 1.

(6) that every negotiable instrument bearing a date was as to date ; made or drawn on such date 2; (c) that every accepted bill of exchange was accepted within as to time

of accepta reasonable time after its date and before its maturity;

ance ; (d) that every transfer of a negotiable instrument was made

as to time before its maturity;

of transfer; (e) that the indorsements appearing upon a negotiable as to order

of indorseinstrument were made in the order in which they appear ments; thereon ;

(f) that a lost promissory note, bill of exchange or cheque as to was duly stamped ;

stamp; (9) that the holder of a negotiable instrument is a holder in that holder due course : provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful course. custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burthen of proving that the holder is a holder in due course lies upon him3.

119. In a suit upon an instrument which has been dis- Presump

a

is a holder in due

tion on

1 That a promissory note which has for its consideration a debt due on a wagering contract is not binding in the hands of the original payee, see 8 Bom. H. C., A. C. J. 131.

7 The Evidence Act, sec. 114, ill.

(c), which says that the Court may
presume that a bill accepted or in-
dorsed was accepted or indorsed for
good consideration, does not quite
suffice for this presumption.

5 Cal. 654

3

a

ment.

proof of

honoured, the Court shall, on proof of the protest, presume protest.

the fact of dishonour, unless and until such fact is disproved. Estoppel 120. No maker of a promissory note, and no drawer of a against denying

bill of exchange or cheque, and no acceptor of a bill of original exchange for the honour of the drawer shall, in a suit thereon

. 1 validity of instru. by a holder in due course, be permitted to deny the validity of

the instrument as originally made or drawn. Estoppel 121. No maker of a promissory note and no acceptor of against denying

a bill of exchange payable to, or to the order of, a specified capacity of

person shall, in a suit thereon by a holder in due course, be payee to indorse.

permitted to deny the payee's capacity, at the date of the note

or bill, to indorse the same. Estoppel 122. No indorser of a negotiable instrument shall, in a suit against denying

thereon by a subsequent holder, be permitted to deny the signature signature or capacity to contract of any prior party to the or capacity of prior

instrument. party.

An ordinary acceptor is not men- the bill was really drawn by the tioned because the Evidence Act, sec. person by whom it purports to have 117, provides that he may deny that been drawn.

a

CHAPTER XIV.

OF CROSSED CHEQUES.

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a

crossed

123. Where a cheque bears across its face an addition Cheque

crossed of the words and company' or any abbreviation thereof

generally. between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words “not negotiable,” that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally?. 124. Where a cheque bears across its face an addition of Crossing

after issue. the name of a banker, either with or without the words 'not negotiable,' that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to be crossed to that banker.

125. Where a cheque is uncrossed, the holder 3 may cross it Cheque generally or specially.

specially Where a cheque is crossed generally, the holder may cross it specially

Where a cheque is crossed generally or specially, the holder3 may add the words 'not negotiable.'

Where a cheque is crossed specially, the banker2 to whom it is crossed may again cross it specially to another banker, his agent, for collection. 126. Where a cheque is crossed generally, the banker 2 on Payment

of cheque whom it is drawn shall not pay it otherwise than to a banker.

crossed a cheque is crossed specially, the banker on whom it generally. is drawn shall not pay it otherwise than to the banker to Payment

of cheque whom it is crossed, or his agent for collection.

crossed

specially 39 & 40 Vic. c. 81, sec. 4. As to his altered direction; 3° if in addition the effect of crossing a cheque see to the cheque being crossed, the Smith v. Union Bank, 1 Q. B. D. 35,

payer's signature was forged, he would per Lord Cairns C. 1° it imposes retain his property and could recover caution on the banker ; 2° it alters it from the banker. the mandate, and the customer the drawer may object to being charged

3 Sec. 8. with the cheque if paid contrary to

Where

Sec. 3.

more than once.

Payment 127. Where a cheque is crossed specially to more than one of cheque banker ?, except when crossed to an agent for the purpose of specially collection, the banker on whom it is drawn shall refuse pay

ment thereof ? Payment 128. Where the banker on whom a crossed cheque is drawn in due course of

has paid the same in due course, the banker paying the cheque, crossed and (in case such cheque has come to the hands of the payee) cheque.

the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.

Payment 129. Any banker paying a cheque crossed generally otherof crossed cheque out wise than to a banker, or a cheque crossed specially otherwise of due than to the banker to whom the same is crossed, or his agent course.

for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque

having been so paid 3. Cheque

130. A person taking a cheque crossed generally or specially, bearing

bearing in either case the words 'not negotiable,' shall not have, and shall not be capable of giving, a better title to the

cheque than that which the person from whom he took it had. Non-lia- 131. A banker who has in good faith and without negligence bility of banker received payment for a customer of a cheque crossed generally receiving or specially to himself shall not, in case the title to the payment of cheque. cheque proves defective, incur any liability to the true

owner of the cheque by reason only of having received such payment 4

'not nego

tiable.'

1 Sec. 3.

* Smith v. Union Bank of Londos, L. R., 10 Q. B. 291; affd. 1 Q. B. D.

9 If, nevertheless, he pays, he pays at his peril, and will be liable to the true owner of the cheque if payment be made to the wrong person, Chal

31;

Mathiessen v. London & County Bank, 5 C. P. D. 7.

mers, 116.

CHAPTER XV.

OF BILLS IN SETS.

132. Bills of exchange may be drawn in parts, each part Set of bills. being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set 1; but the whole set constitutes only one bill, and is extinguished when one of the parts, if a separate bill, would be extinguished.

Exception. When a person accepts or indorses different parts of the bill in favour of different persons, he and the subsequent indorsers of each part are liable on such part as if it were a separate bill.

133. As between holders in due course of different parts Holder

of first of the same set, he who first acquired title to his part is

acquired entitled to the other parts and the money represented by the part en

titled to all. bill?

? As to accepting a bill drawn in parts, see sec. 7, para. 3. The Stamp Act does not contemplate more parts

than three.

2 Holdsworth v. Hunter, 10 B. &

C. 449.

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