CHAPTER XIII. SPECIAL RULES OF EVIDENCE. 118. Until the contrary is proved, the following presump- Presumptions shall be made : tions as to negotiable ments (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. (b) that every negotiable instrument bearing a date was as to date; made or drawn on such date 2; of acceptance; (c) that every accepted bill of exchange was accepted within as to time a reasonable time after its date and before its maturity; (d) that every transfer of a negotiable instrument was made as to time before its maturity; of transfer; as to order of indorse (e) that the indorsements appearing upon a negotiable instrument were made in the order in which they appear ments; thereon ; as to stamp; is a holder (f) that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that the holder of a negotiable instrument is a holder in that holder due course provided that, where the instrument has been in due 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 him 3. 119. In a suit upon an instrument which has been dis- Presump 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. 2 The Evidence Act, sec. 114, ill. (c), which says that the Court may 3 5 Cal. 654. tion on proof of protest. Estoppel against denying original validity of instru ment. Estoppel against denying honoured, the Court shall, on proof of the protest, presume the fact of dishonour, unless and until such fact is disproved. 120. No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no acceptor of a bill of exchange for the honour of the drawer 1 shall, in a suit thereon by a holder in due course, be permitted to deny the validity of the instrument as originally made or drawn. 121. No maker of a promissory note and no acceptor of 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 against 122. No indorser of a negotiable instrument shall, in a suit 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 instrument. of prior party. An ordinary acceptor is not mentioned because the Evidence Act, sec. 117, provides that he may deny that the bill was really drawn by the person by whom it purports to have been drawn. CHAPTER XIV. OF CROSSED CHEQUES. crossed 123. Where a cheque bears across its face an addition Cheque 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 1. after issue. 124. Where a cheque bears across its face an addition of Crossing the name of a banker 2, 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. 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. crossed specially. crossed 126. Where a cheque is crossed generally, the banker 2 on Payment whom it is drawn shall not pay it otherwise than to a banker. of cheque Where a cheque is crossed specially, the banker on whom it generally. is drawn shall not pay it otherwise than to the banker to Payment whom it is crossed, or his agent for collection. 1 39 & 40 Vic. c. 81, sec. 4. As to the effect of crossing a cheque see Smith v. Union Bank, 1 Q. B. D. 35, per Lord Cairns C. 1o it imposes caution on the banker; 2° it alters the mandate, and the customer the drawer may object to being charged with the cheque if paid contrary to his altered direction; 3° if in addition 2 Sec. 3. 3 Sec. 8. of cheque crossed specially. Payment crossed 127. Where a cheque is crossed specially to more than one of cheque banker 1, except when crossed to an agent for the purpose of specially collection, the banker on whom it is drawn shall refuse payment thereof 2. more than once. Payment in due course of crossed cheque. Payment of crossed of due 128. Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque, and (in case such cheque has come to the hands of the payee) 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. 129. Any banker paying a cheque crossed generally othercheque out wise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent 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. course. Cheque bearing 130. A person taking a cheque crossed generally or specially, not nego- 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. tiable.' Non-liability of banker 131. A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally receiving or specially to himself shall not, in case the title to the of cheque. cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment *. payment 1 Sec. 3. 2 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, Chalmers, 116. 3 Smith v. Union Bank of London, L. R., 10 Q. B. 291: affd. I Q. B. D. 31. Mathiessen v. London & County Bank, 5 C. P. D. 7. 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. of first 133. As between holders in due course of different parts Holder 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 enbill 2. 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. titled to all. |