The Rules, 1883, 0. xix., r. 15, ante, p. 283, would probably now require the defences above stated to be specially pleaded.

By sect. 36(4), a bill is in general presumed to have been indorsed before it became due. A bill being drawn and endorsed in the name of the firm under which defendant and another carried on business, a question arose whether the indorsement was before or after the dissolution of the partnership had been advertised. The bill was dated before the advertisement, but the indorsement was not dated. Held, that the date was prima facie the true date, and that it was properly left to the jury to say whether it was indorsed before or after the advertisement; and that, as it was drawn payable to the defendant's own order, the jury might reasonably infer that it was indorsed shortly after the drawing. Anderson v. Weston, 6 N. C. 296. As to indorsement by one of several partners after dissolution, see ante, p. 339.

An indorsement in the form, " Pay J. S., or order, value in account with H. C. D.," was, in an action by a subsequent indorsee against the indorser, held not to be a restrictive indorsement; it merely means that value has been received in a certain manner, and has the same effect as if this were stated on the face of the bill. Buckley v. Jackson, L. R., 3 Ex. 135.

In suing an indorser on non-payment of the bill by the drawee, it is unnecessary to state an acceptance; and, if stated, it need not be proved. Tanner v. Bean, 4 B. & C. 312. It is only necessary to prove a presentment for payment at the place, if any, pointed out in the acceptance. Parks v. Edge, 1 Cr. & M. 429. The rules with regard to the presentment of the bill and notice of dishonour are, in general, the same in this action as in an action by the payee against the drawer; see ante, pp. 342, et seq.

No evidence of a demand upon the drawer, or prior indorsers, is necessary. Bromley v. Frazier, 1 ́Str. 441; Heylyn v. Adamson, 2 Burr. 669.

By sect. 50" (2.) Notice of dishonour is dispensed with." . . .

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(d.) As regards the indorser in the following cases, namely, (1) where the drawee is a fictitious person" (vide sect. 2, ante, p. 318) or a person

not having capacity to contract and the indorser was aware of the fact at the time he indorsed the bill, (2) where the indorser is the person to whom the bill is presented for payment, (3) where the bill was accepted or made for his accommodation."

Proof of notice of dishonour will be dispensed with by a promise of the defendant to pay; Wilkes v. Jacks, Peake, 202; provided it be an unambiguous one; thus, the following letter from the indorser was held not to waive the proof of notice: "I cannot think of remitting till I receive the draft; therefore if you think proper you may return it to Trevor & Co., if you think me unsafe;" Borradaile v. Lowe, 4 Taunt. 93. A promise to pay not made to the plaintiff, but to another person who was holder of the bill at the time, will be sufficient. Potter v. Rayworth, 13 East, 417. So, allowing judgment to go by default in an action brought by the then holder of the same bill dispenses with proof of notice of dishonour. Rabey v. Gilbert, 6 H. & N. 536; 30 L. J., Ex. 170. And see further, ante, pp. 353, et seq., as to what will dispense with proof of notice of dishonour.

By sect. 37, ante, p. 322, where a bill is negotiated back to a prior indorser, such person is not in general entitled to enforce payment of the bill against any intervening party to whom he was previously liable. But, circumstances may be specially pleaded, showing that the defendant could not sue the plaintiff on his endorsement. Wilders v. Stevens, 15 M. & W. 208 ; Wilkinson v. Unwin, 7 Q. B. D. 636, C. A. And, in an action by indorsee against indorser, where the issue was only on the want of notice to the defendant of non-payment by drawee, defendant was not permitted to show

that the plaintiff (who had given due notice) and the drawer were one and the same person; the defence should have been specially pleaded. Williams v. Clarke, 16 M. & W. 834.

Although a prior indorser is prima facie liable to indemnify a subsequent one, yet the whole circumstances of the making, &c., of the note or bill may be referred to in order to show the true relation of the parties inter se, and the relative position of the parties may be thereby altered. Thus, where three directors of a company, in order to become sureties for the company to a bank, successively indorsed three notes of the company, it was held that they were not liable to indemnify each other in accordance to the priority of their indorsements, but were only liable to contribute equally inter se. Macdonald v. Whitfield, 8 Ap. Ca. 733 ; P. C.

Evidence under money claims.] An indorsement is prima facie evidence of money lent by the indorsee to his immediate indorser; Kessebower v. Tims, Bayley on Bills, 6th ed., 363. But, where the indorser told his indorsee, just before presentment, that the bill would not be paid, that notice need not be sent to him, and that he would send the money on a future day, this was held no evidence on an account stated; it being no proof of a debt due from the indorser at the time of the promise; but, only a conditional promise in a certain event. Burgh v. Legge, 5 M. & W. 418. Though as between indorser and his indorsee the bill is evidence of an account stated, this may be rebutted by showing that the defendant endorsed in blank, and delivered it to F., who carried it to the plaintiff to be discounted. Burmester v. Hogarth, 11 M. & W. 97.

Damages Generally.

Statute.] By sect. 57, "Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows:

"(1.) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser who has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior indorser

(a.) The amount of the bill:

(b.) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case:

(c.) The expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest."

"(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.' "(3.) Where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part, 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."

The re-exchange is the value of the foreign coin expressed in English money at the rate of exchange on the day of dishonour, see Suse v. Pompe, 8 C. B., N. S. 538; 30 L. J., C. P. 75 ; and evidence of custom amongst merchants, giving the holder the option of recovering the sum which he

S. C.

gave for the bill in England or the re-exchange is not admissible, as it would contradict the obligation implied by the written instrument. See further as to the right to re-exchange, or to a fixed sum by custom in lieu thereof, Willans v. Ayers, 3 Ap. Ca. 133, P. C. As to the mode of calculating interest on bills and notes, see post, Action for interest.

Defences, generally, to Actions on Bills of Exchange.

By Rules, 1883, O. xxi., r. 2, "in actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact; e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note." See also O. xix., r. 17, ante, p. 283. The proofs required on these traverses have already been considered. The following are some of the most usual defences to actions on bills, not already noticed.

Negotiation of overdue or dishonoured bill.] By sect. 36. "(2.) Where an overdue bill is negotiated, it can only be negotiated subject to any defect of title" (vide sect. 29 (2), ante, p. 322) "affecting it at its maturity, and thenceforward no person who takes it can acquire or give a better title than that which the person from whom he took it had.”

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(3.) A bill payable on demand" (vide sect. 10, ante, p. 320) "is deemed to be overdue within the meaning and for the purposes, of this section, when it appears on the face of it to have been in circulation for an unreasonable length of time. What is an unreasonable length of time for this purpose is a question of fact."

Subsect. (3) applies to cheques, sect. 73, post, p. 370, but not to promissory notes, sect. 86 (3), post, p. 375.

(4.) Except where an endorsement bears date after the maturity of the bill, every negotiation is prima facie deemed to have been effected before

the bill was overdue."

"(5.) Where a bill which is not overdue has been dishonoured any person who takes it with notice of the dishonour takes it subject to any defect of title attaching thereto at the time of dishonour, but nothing in this subsection shall affect the rights of a holder in due course" (vide sect. 29, ante, p. 322).

In subsect. (2) and throughout the Act the term "defect of title" is used as equivalent to an equity attaching to the bill itself. See Holmes v. Kidd, 3 H. & N. 891; 28 L. J., Ex. 113, Ex. Ch. But the indorsee taking it overdue does not take it subject to claims arising out of collateral matters; Burrough v. Moss, 10 B. & C. 558 ; Oulds v. Harrison, 10 Exch. 572 ; 24 L. J., Ex. 66. Thus, the indorsee of an overdue bill of exchange is not liable to have a debt due from the drawer to the acceptor set off against his bill. S. C.

Loss of bill.] Unless the loss is specially pleaded, the plaintiff may, after proving the loss, give secondary evidence of the bill. Blackie v. Pidding, 6 C. B. 196. See sects. 69, 70, ante, p. 324, as to lost bills.

Wrong stamps, &c.] Vide ante, pp. 209, 226, 227. By sect. 96 (3) (a), the provisions of the Stamp Acts are not affected by the B. of Ex. Act, 1882.

Alteration.] By sect. 64. "(1.) Where a bill or acceptance is materially altered without the assent of all the parties liable on the bill, the bill is avoided except as against a party who has himself made, authorised or assented to the alteration, and subsequent indorsers.

Provided that,

Where a bill has been materially altered, but the alteration is not apparent,

and the bill is in the hands of a holder in due course" (vide sect. 29, ante, p. 322), "such holder may avail himself of the bill as if it had not been altered, and may enforce payment of it according to its original tenour." (2.) In particular the following alterations are material, namely, any alteration of the date, the sum payable, the time of payment, the place of payment, and, where a bill has been accepted generally, the addition of a place of payment without the acceptor's assent."

The provision in italics is new.

The defence of alteration under this section arises apart from the objection that a bill altered in any material particular after it has been issued is a fresh instrument and requires a new stamp, as to which vide ante, pp. 230, 231, for sect. 97 (3) (a) saves the effect of the Stamp Acts. As to cancellation of acceptance by mistake, vide sect. 63 (3), post, p. 369.

The alteration is "apparent" if the party liable on the bill can at once discern it on the face of the bill, though it is not obvious to all the world. Leeds Bank v. Walker, 11 Q. B. D. 84.

The alteration may be material although the contract is unaffected thereby; in such case it is necessary to inquire what was the object of the part which is altered. Suffell v. Bank of England, 9 Q. B. D. 555, C. A. Thus, the number on a Bank of England note has been held to be a material part thereof. S. C.

After a joint and several note, made payable "with lawful interest," had been signed by three makers, two of the makers, with the assent of the plaintiff, the payee and holder, wrote on the left-hand corner of it, "with interest at six per cent. ;" held that this avoided it as against the third maker who was sued alone. Warrington v. Early, 2 E. & B. 763; 23 L. J., Q. B. 47. So, the addition of a memorandum, which fixes the rate of exchange at which a foreign bill is payable, avoids it. Hirschfield v. Smith, L. R., 1 C. P. 340. And, where the defendant gave a blank acceptance for valuable consideration, it was held that the person to whom it was delivered was only entitled to draw a bill with a general acceptance, and that the insertion of a particular place of payment before the acceptance vitiated the bill, at all events as between the immediate parties. Hanbury v. Lovett, 18 L. T., N. S. 366, E. T. 1868, Ex. ; see also Crotty v. Hodges, post, p. 362. So, altering a joint and several note signed by two into a note signed by three, by getting a third maker to join, vitiates the note as against one of the makers who did not assent to the alteration. Gardner v. Walsh, 5 E. & B. 83; 24 L. J., Q. B. 285. Where the defendant had paid two years' interest on an altered note, this was held to be evidence that the alteration was by his consent. Cariss v. Tattersall, 2 M. & Gr. 890. It is for the party who sues on an instrument evidently altered, to give some evidence to explain the alteration. Clifford v. Parker, Id. 909. In a suit by drawer against acceptor: Plea, 1, traverse of acceptance; 2, alteration after acceptance; the proof was, that the bill was drawn in France on the defendant in London, and the defendant had expressly accepted the bill for a less sum than in the body of it, and that the sum had been altered accordingly, but by whom or when did not appear: held that plaintiff ought to recover; for it might be presumed that the defendant consented to alter the bill, and non constat, but that the alteration was made in France, so as not to require an impressed stamp. Hamelin v. Bruck, 9 Q. B. 306. The addition of the words " on demand," to a promissory note which expressed no time for payment, was held to be an immaterial alteration. Aldous v. Cornwell, L. R., 3 Q. B. 573. See further in 1 Smith's L. Cases, notes to Master v. Miller, and cases cited, ante, pp. 230, 231, and 325.

An alteration of such a kind as to discharge the acceptor was formerly admissible in evidence under a traverse of the acceptance; when the bill

was declared on in its altered form. Hirschman v. Budd, L. R., 8 Ex. 171; following Cock v. Coxwell, 2 C. M. & R. 20; and overruling Parry v. Nicholson, 13 M. & W. 778. Where, however, the instrument was declared on in its unaltered form, or the altered part did not appear in the declaration, it was necessary to plead the alteration specially. Mason v. Bradley, 11 M. & W. 590. The defendant authorised W. to put his name to a general acceptance on a blank stamp; this was done, and on filling the bill up the payee added a place of payment to the acceptance, the bill being declared on without stating the place of payment: on a traverse of the acceptance, the defendant was held entitled to succeed, on the ground apparently that the acceptance never existed on a perfect bill as a general acceptance; and a special one was not authorised by the defendant. Crotty v. Hodges, 4 M. & Gr. 561. And see Hanbury v. Lovett, ante, p. 361. In all the above cases it would now be necessary to plead the defence specially. Rules, 1883, O. xix., r. 15, ante, p. 283.

Where the drawer made an alteration fatal to the bill, as between him and the acceptor, he may recover on a claim for the original consideration; Atkinson v. Hawdon, 2 Ad. & E. 628; aliter, as between indorsee and drawer, the alteration being made by the former. Alderson v. Langdale, 3 B. & Ad. 660. A note so altered as to avoid it, may be used by the payee as evidence of an account stated by the maker at the time it was given. Gould v. Coombs, 1 C. B. 543.

Failure or want of consideration.] Sect. 27, ante, p. 321, defines valuable consideration for a bill and a holder for value.

Sect. 28. "(1.) An accommodation party to a bill is a person who has signed a bill as drawer, acceptor, or indorser, without receiving value therefor and for the purpose of lending his name to some other person."

"(2.) An accommodation party is liable on the bill to a holder for value; and it is immaterial whether, when such holder took the bill, he knew such party to be an accommodation party or not."

Want of consideration alone is only a defence, when the parties to the action, are the parties as between whom there was the alleged want of consideration, or as between parties who are in privity with them. A bona fide holder for value is not affected by any want of consideration as between antecedent parties to the bill or note.

Formerly any facts or circumstances which invalidated the original consideration of a bill or note were admitted in support of a general plea of want of consideration; see Mills v. Oddy, 2 C. M. & R. 103, cited post, p. 363; but it would seem that the facts relied on should now be specially pleaded. Rules, 1883, O. xix., r. 15.

Where a debt is due on a judgment between the parties there is a good consideration; as the taking the security imports a promise on the part of the judgment debtor to suspend proceedings on the judgment till the maturity of the bill or note; Baker v. Walker, 14 M. & W. 465; the same principle applies where there is a debt from a third person to the payee; Poplewell v. Wilson, 1 Str. 264. A solicitor's bill, though not delivered according to law, is a good consideration. Jeffreys v. Evans, 14 M. & W. 210. In an action by payee against the acceptor of a bill at 3 months. drawn in consideration of money to be paid in one month by payee to drawer, and accepted for the accommodation of the drawer, if the money be not paid, the consideration fails and the plaintiff cannot recover. Astley v. Johnson, 5 H. & N. 137; 29 L. J., Ex. 161. A note given by the defendant on the faith of a misrepresentation by the plaintiff of either matter of fact or of law, though made without fraud, may be impeached as for want of consideration. Southall v. Rigg, and Forman v. Wright, 11 C. B. 481; 20 L. J.,