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Holder in Due Course.
A “holder in due course," or a “ bona fide holder for value without notice," is a holder who has taken a bill complete and regular on the face of it under the following conditions :-(i.) That he became the holder of it before it was overdue and without notice that it had been previously dishonoured, if such was the fact ; (ii.) That he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it.
The title of a person who negotiates a bill is defective when he obtained the bill, or the acceptance thereof, by fraud, duress, or force and fear, or for illegal consideration.
Capacity of Parties, Signature, Stamp, &c.
Any person capable of entering into a contract is also capable of becoming party to a bill.
A signature by procuration operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority.
Where a person signs a bill, and adds words to his signature indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon.
An Agent who signs without authority is liable to an action for damages.
An Agent or representative should either sign by procuration signature, or prefix words to his signature specifying that he signs for or on behalf of his principal. ThusFor the Blanktown Woollen Co., Ld.,
Secretary. The full ordinary signature of the signer for procuration should be given, and not the bare initials.
A signature to a bill or promissory note need not be in the hand. writing of the person required to sign same, but it is sufficient if his name be written thereon by some other person by or under his authority
In the case of a Corporation the Corporation Seal is sufficient, although the seal is not necessary if the bill be otherwise signed.
Bills and promissory notes must be stamped with an impressed stamp before the execution thereof.
The penalty for issuing an unstamped bill or note is £10.
Bills of Exchange payable on demand, or at sight, or on presentation are subject to a uniform duty of one penny, which may be affixed by an adhesive stamp.
The stamps required for all other Inland Bills and promissory notes, are as follows:
Where the amount or value of the money for which the bill or note is drawn or made does not
Exceed £ 5 .......
£ 50.. £ 50
£100... £100, for every £ 100 and also for
any fractional part of £100... 0 1 0
Foreign and Colonial Bills. Foreign Bills are usually drawn in sets of two or three, all of the same tenor and date (see example, p. 286), the several parts being transmitted by different routes as security against accidents or delays.
The first of the set that comes to hand being accepted the other parts are of course useless.
Acceptance may be written on any one part, and it must be written on one part only. If a drawee accepts more than one part, or if a holder indorses more than one part, he is liable on every such part so accepted or indorsed that gets into the hands of different holders in due course (see also Acceptance, page 288).
Where the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he his liable to the holder thereof.
Bills are usually drawn in the currency of the place where they are payable, and the sum to be paid is calculated at the rate of exchange (8) for demand drafts at the place where the bill is payable on the day it is due. Bills drawn payable exchange per endorsement, entitle the holder to negotiate the bill before it becomes due at the current rate of exchange on the date of negotiation, the acceptor undertaking to pay accordingly. Any difference between the rate of exchange on the date of negotiation and the rate of exchange on the date when the bill matures is usually adjusted between the payer and payee, and is either part of the contract for which payment is made or is allowed in account current.
Bills drawn in the United Kingdom on merchants in India and the Colonies are frequently negotiated through banks having agencies in the place where the merchant resides. The bills of lading and shipping documents relating to the goods in respect of which the bills are drawn are hypothecated to the bank as security. In this way payment for goods can be obtained, less the cost of discount and exchange, immediately the goods are shipped, without risk to the shipper, as the bank's agent will not hand over the bill of lading until the bill of exchange is honoured.
(9) For explanation as to the term “Rate of Exchange," refer to any good encyclopædia, where not only the explanation but also the titles of works dealing with the subj re fully may be found
A foreign bill must be stamped on its being received in this country, to the same amount as if it were an inland bill ; but the stamp may be an adhesive foreign bill stamp.
CHEQUES. A Cheque is a bill of exchange drawn on a banker, payable on demand, and the law applicable to a bill of exchange on demand generally applies to a cheque.
A cheque should be immediately presented for payment, and a person who takes a stale cheque takes it at his peril.
Notice of dishonour must be given to the drawer and indorser, if any.
The duty and authority of a banker to pay a cheque drawn on him by his customer, are determined by countermand of payment, notice of the customer's death, or knowledge that the customer has committed an act of bankruptcy.
Subject to the preceding paragraph, if a banker, having sufficient funds in hand, dishonours his customer's cheque he is liable to him in an action for damages.
A cheque crossed, by drawing across its face two parallel lines and writing “ & Co." between, is payable to a banker only. If a cheque is crossed specially by writing the name of a banker across its face it is payable only to the banker specified.
Cheques should be so written that they cannot be tampered with or altered. A carelessly drawn cheque for, say, £8:10:0 (eight pounds ten shillings), might easily be altered to £80 : 10 : 0 (eighty pounds ten shillings), and the possibility of such fraudulent substitution of a larger amount should therefore be prevented.
The indorsement across the cheque of words such as “under twenty pounds" is a very common safeguard.
Letters of Credit. A Letter of Credit is an authority from one banker to another to pay money to another person.
VIII. INFORMATION ON MERCANTILE
SUBJECTS. very desirable that a book-keeper should be fully alive to all customs, regulations, and legal requirements connected with the affairs of the counting-house. He should be prepared to act promptly on emergency, although careful to seek proper advice upon matters of difficulty or uncertainty. The following information relates to a few of those subjects with which every efficient book-keeper should be thoroughly acquainted
Bills of Lading. A Bill of Lading is an acknowledgment, on stamped paper,* given by the master of a vessel for goods received on board, containing also an agreement as to their delivery, freight, &c. Three copies are made
A sixpenny stamp, impressed before esecution is required.
out-two for the use of the shipper and one for the master. The Bill of Lading gives a right to the holder to receive the goods, and, like a Bill of Exchange, may be negotiated by being indorsed over to another person.
Guaranty and Collateral Security. When a customer's account becomes larger than his apparent means warrant, either a guaranty or collateral security is frequently obtained.
A GUARANTY is a promise to answer for the payment of a debt, or the performance of a duty, in the case of the failure of a person who is himself, in the first instance, liable to such payment or performance. A guaranty cannot be enforced unless it is in writing. A person who has given a guaranty is discharged if the holder of the guaranty agrees to give time to the principal without his consent, and, generally, if he substitutes any other agreement with the principal which alters the situation of the surety, or differs from that for the performance of which the surety is responsible. A guaranty is not valid unless there be some consideration given therefor.
COLLATERAL SECURITY is security given in addition to the chief security. It is frequently given to a banker to secure the overdraft of a customer, and in the event of the bankruptcy of the customer the bank has the right to claim on the customer's estate for the full amount of his debt and then to have recourse to the collateral security, the giver of the collateral security having no remedy.
Interest. Interest may be charged upon debts payable by virtue of some written instrument at a certain time. In other cases interest can be claimed only from the date when a demand for payment shall have been made, in writing, giving notice that interest will be claimed. Forms for invoices and statements should therefore intimate that interest will be charged on overdue accounts.
Lien. Lien is a right to retain property until a debt due to the person retaining has been satisfied. There are two species of liens known as Particular and General.
Particular liens are where persons claim to retain the goods in respect of which the debt arises; as where a Dyer has a lien on goods delivered to him to dye.
General liens are claimed in respect of a general balance of account. They are very strictly construed by the courts, and will not be allowed unless proved upon strong evidence, such as express contract, or the usage of trade. It is customary, therefore, for Dyers, Finishers, and other Commission Workers to print an express stipulation for a general lien on their invoices and statements.
Statute of Frauds, Contracts over £10. The Statute of Frauds enacts that no contract for the sale of any goods for the price of £10 and upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties. The Act applies to goods to be delivered at some future time, as well as those to be delivered at once. It will therefore be seen that every order should, if possible, be obtained in writing, either directly or by admission.
Statutes of Limitation.
The Statutes of Limitation limit the time to six years within which an action may be brought to recover a debt, but a promise to pay, or an unqualified acknowledgment of the debt in writing, is sufficient to bar the Statute.
Stoppage in Transitu.
When goods are consigned on credit and the consignee becomes insolvent before the goods arrive the important right or privilege of stoppage in transitu may be exercised. The consignor of the goods may direct the carrier to return the goods to him. The right of stoppage in transit may sometimes be defeated, as where the consignee of the goods indorses the bill of lading to a bona fide indorsee (see Bills of Lading).