$98. 38 Vict. c. 94, § 41, but is not competent where the party has signed by initials, Monro v. Monro, 14th Nov. 1870, Hume's Dec. p. 81; or by mark, or where the husband of a party liable on the bill, is the debtor, or on an undated bill, or on a bill wanting in any material particular or irregular in form, or ex facie vitiated or altered, Hamilton v. Kinnear, 17th June, 1825, 4 Sh. 102; Corrie v. Barbour, 26th Nov. 1825, 4 Sh. 228; Wilson v. Hart, 25th Feb. 1826, 4 Sh. 504; Henderson v. Macartney, 26th Jan. 1827, 6 Sh. 460. Summary diligence cannot be used where the drawee has accepted conditionally. In all these cases extrinsic proof is requisite to establish the holder's right to charge on the bill, and is therefore incompetent. Where a blank stamped paper with a signature thereon has been filled up as a complete bill, vide § 20, or an imperfect bill has been completed, ibid., it is a good warrant for summary diligence, Cameron v. Morrison, 20th Jan. 1869, 7 M. 382. Diligence is not competent on a lost bill, Thomson on Bills, p. 411; nor on a past-due bill found in the repositories of the deceased holder, torn into three parts, which were pasted together by the drawer's representatives, Thomson v. Bell, 5th July, 1850, 12 D. 1184. Where a bill is granted by a company, diligence can be used against any member of the firm, although his name does not appear on the bill, Wallace v. Plock, 19th June, 1841, 3 D. 1047. In Service v. Younger, 19th Dec. 1867, 6 M. 172, a protest on a blank indorsed bill having been extended, registered, and extracted at the instance of A. B. as holder, a subsequent registration of another protest at the instance of C. D. as holder, proceeding on the same indorsement, was held to be irregular, and a charge thereon suspended. The extract registered protest forms a warrant to charge the party liable on the bill to pay the sum in the bill and interest thereon from its due date, within six days if he is resident in Scotland, Act 1681, c. 20; and within fourteen days if he is in Orkney or Shetland, or furth of Scotland, 31 & 32 Vict. c. 100, § 14. The charge must strictly conform to its warrant, and be executed against the parties named in the protest. Formerly the debtor could be apprehended and imprisoned, but imprisonment has been abolished except in a few specified The debtor may bring a suspension of a charge or The use of summary diligence is excluded, so long as an ordinary action is in dependence, Denovan v. Cairns, 1st Feb. 1845, 7 D. 378. For the rules of Summary Procedure in England, vide 18 & 19 Vict. c. 67, Appendix. $ 98. Construction 99. Where any Act or document refers to any with other enactment repealed by this Act, the Act or document Acts, &c. shall be construed, and shall operate, as if it referred to the corresponding provisions of this Act. dence allowed in certain ceedings in 100. In any judicial proceeding (a) in Scotland, Parole eviany fact relating to a bill of exchange, bank cheque, judicial proor promissory note, which is relevant to any question Scotland. of liability thereon, may be proved by parole evidence (b): Provided that this enactment shall not in any way affect the existing law and practice whereby the party who is, according to the tenour of any bill of exchange, bank cheque, or promissory note, debtor to the holder in the amount thereof, may be required, as a condition of obtaining a sist of diligence, or sus § 100. pension of a charge, or threatened charge, to make such consignation, or to find such caution as the court or judge before whom the cause is depending may require (c). This section shall not apply to any case where the bill of exchange, bank cheque, or promissory note has undergone the sexennial prescription (d). (a.) This includes ordinary actions, multiplepoindings and suspensions of charges and threatened charges on a registered protest of a bill or note. (b.) This provision does not profess to assimilate the laws of evidence of the two countries in this particular, but its practical effect is to allow proof by parole in those cases in which parole evidence is admissible in England. Proof by parole evidence was allowed in certain cases by the law of Scotland. It is not necessary in Scotland as it seems to be in England to prove the genuineness of the signatures to a bill, and parole evidence may be adduced that the bill or any signature thereto is forged, Miller v. Little, 29th Jan. 1831, 9 Sh. 328. Where fraud was relevantly averred, a proof by parole was allowed in Little v. Smith, 9th Dec. 1845, 8 D. 265. See also Campbell v. Dryden, 25th Nov. 1824, 3 Sh. 320; Hunter v. George's Trustees, 24th May, 1832, 10 Sh. 561, 7 W. and S. 337; Burns v. Burns, 20th July, 1841, 3 D. 1273. If it was admitted that the bill had not been granted in the ordinary course of business, or if there were facts which gave rise to suspicion that the bill was not granted for value, a proof by parole was formerly allowed, Alexander v. Stuart, 27th Jan. 1877, 4 R. 366. This section increases the number of cases in which parole proof is competent, but does not in every case abolish the necessity for a reference to writ or oath. The fact to be proved must be, in the first place, one relating to a bill of exchange, bank cheque, or promissory note. A document wanting in any of these requirements is not a bill, vide § 3 (1), cheque, vide § 73, or note, vide § 83, and no action can be brought on it till that defect has been supplied in the way pointed out in §§ 12 and 20. The want of a date is not material, except in the case of a bill payable after date, or of an acceptance of a bill after sight. In all other cases a bill or acceptance not bearing a date can be sued on without first inserting a date. Where the date of payment depends on the date of the drawing or acceptance, it is thought that the date must be filled in before action is brought, and that the date cannot be proved by parole, or at least that summary diligence cannot be used in Scotland, on a bill wanting the date, or other requirement. In any case, parole proof is competent to show that the bill has not been filled up in accordance with the authority, if any, given by the signer, by subscribing his name, vide § 20, or on the true date as required by § 12, or that it has been materially altered so as to be no longer a bill or note. In the second place, the fact must be relevant to any question of liability thereon. (1.) It may now be shown by parole that no valuable consideration in the sense of this Act, vide § 27, has been given, whether the bill or note bears to be "for value received or not. (2.) It may be shown by such evidence that the bill has been discharged in any of the ways, except renunciation, pointed out in §§ 59-63; but where a receipt for the sum in bill has been granted, proof by parole will not be admissible if the receipt is in existence, and it is not competent by parole to contradict the terms of a written discharge. (3.) It may also be shown that the bill or acceptance was never delivered, or that it was delivered merely for safe custody, and not in order to give effect thereto. (4.) Such proof is allowed where it is averred that the bill was delivered subject to the condition that it was not to be used till the occurrence of a specified event, Wallis v. Littell, 1 M. and W. 212. It is not relevant to allege that a bill has been accepted verbally, or that any part of the bill is not in writing, because the Act provides, §§ 3 (1), 83, that the bills, notes, acceptances and indorsements must be in writing on the bill. It is also not relevant to allege any defect in title, or any circumstances which form a personal defence available among prior parties § 100. § 100. to a bill, against a holder in due course or a holder deriving his title through such holder, vide § 27. The allegation that the contracts on the bill are not what they purport to be, vide §§ 54, 55, is irrelevant, because the contracts on a bill must be in writing, and an averment of a verbal understanding that the contract should be clogged by some condition, is an attempt to substitute a different contract for the contract which is implied by law. It is necessary, however, to distinguish between conditions of the contracts on a bill and conditions of the delivery of a bill. The latter may be proved by parole, because delivery of a bill, or acceptance, in order to give effect thereto, is required to complete the contract, and the delivery is not done for that purpose, but merely in order to put the transferee in possession of it, and to transfer the existing contracts. The cases of Castrique v. Buttigiez, 10 Moore, P. C. 94, and Abrey v. Crux, L. R. 5, C. P. 37, may be referred to. In the former an agent received bills drawn in his own favour for the price of goods of his principal, sold by him, and indorsed them to his principals for the purpose of transferring the bills to them, and not for the purpose of undertaking any responsibility. If he had added "without recourse to his signature the bills would not have been so easily discounted by his principals. The bills having been dishonoured, he was sued by his principals as their indorser. The Privy Council laid down the rule that, while he would have been liable if the bills had passed into the hands of a holder in due course, in whose favour the common law presumed that a delivery to give effect to the contracts in the bills had taken place, he was not liable to his principals, because he had merely delivered the indorsed bills in order that they might have right thereto, and not to give effect to the contract implied in indorsement. In the latter case, oral evidence was rejected of an agreement varying the contract which the common law implied in the case of a drawer, because it contradicted, or varied, the written contract on the bill, which had been delivered in order to give effect to the contract which the one party alleged was the contract implied by law, and the other party alleged was subject to a verbal qualification. |