if there were funds: Hopkinson v. Foster, L. R. 19 Eq. 74 § 53. (1874); Schroeder v. Central Bank, 34 L. T. N. S. 735 (1876). It was also held in Ontario that an unaccepted cheque was not an equitable assignment, and the holder had no action against the bank: Caldwell v. Merchants' Bank, 26 U. C. C. P. 294 (1876). In Quebec, however, it was held that a cheque was a transfer of so much of the funds of the drawer in the bank and gave the holder a right of action: Marler v. Molsons Bank, 23 L. C. J. 293 (1879). In several of the United States the holder is allowed to sue on an unaccepted cheque ;--in Louisiana: Gordon v. Mulcher, 34 La. Ann. 608 (1882);-in Illinois: Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212 (1875); Springfield Ins. Co. v. Peck, 102 Ill. 265 (1882);—in Iowa: Roberts v. Austin, 26Iowa, 316 (1868);—in Missouri: Senter v. Continental Bank, 7 Mo. App. 532 (1879);—and in Kentucky: Lester v. Given, 8 Bush (Ky), 358 (1871). The English and Ontario rule will now prevail throughout Canada, as section 72 of the Act provides that "a cheque is a bill of exchange drawn on a bank," and the present section applies to cheques as well as to other bills. assignment The rule laid down in the section has long been recog- Bill not an nized in England as to ordinary bills: Griffin v. Weatherby, L. R. 3 Q. B. 753 (1868); Shand v. Du Buisson, L. R. 18 Eq. 283 (1874); even in case of a bill accepted payable at a banker's Yates v. Bell, 3 B. & A. 643 (1820); Moore v. Bushell, 27 L. J. Ex. 3 (1857); Hill v. Royds, L. R. 8 Eq. 290 (1869). Also in Ontario: Lamb v. Sutherland, 37 U. C. Q. B. 143 (1875); and in the United States: Carr v. Nat. Bank, 107 Mass. 45 (1871); Bank of Commerce v. Bogy, 44 Mo. 15 (1869); First Nat. Bank v. Dubuque, 52 Iowa, 378 (1879). A letter of credit is similar in this respect to a bill of Letter of exchange Morgan v. Larivière, L. R. 7 H. L. 432 (1875); credit. § 53. British Linen Co. v. Caledonia Ins. Co., 4 Macq. H. L. 109 n. (1861); Union Bank v. Cole, 47 L. J. C. P. 109 (1878). Where, however, an open letter of credit contained a provision that parties negotiating bills under it were requested to indorse particulars on the back of it, and the payee of a bill drawn under it had the particulars duly indorsed, he was allowed to rank on the insolvent estate of the bank issuing the letter: re Agra Bank, L. R. 2 Ch. 391 (1867). See also ex parte Stephens, L. R. Ch. 756 (1868); Citizens' Bank v. New Orleans Bank, L. R. 6 H. L. 352 (1873). Liability of acceptor. It will be observed that the section says that a bill does not "of itself" operate as an assignment of funds in the hands of the drawee. This, however, may be effected by an agreement outside of the bill: Robey v. Ollier, L. R. 7 Ch. 695 (1872): Ranken v. Alfaro, L. R. 5 Ch. D. 786 (1877). 54. The acceptor of a bill, by accepting it— (a.) Engages that he will pay it according to the tenor of his acceptance; Imp. Act, s. 54 (1). See section 17 as to the form of a valid acceptance. An acceptance may be either general or qualified: section 19. In the former case the undertaking of the acceptor is that he will pay the bill according to its terms; in the latter that he will pay it as modified by the terms of his qualified acceptance. By his acceptance he becomes the primary debtor, the drawer and indorsers being only secondarily or conditionally liable: Rowe v. Young, 2 Bligh H. L. 467 (1820); Philpot v. Briant, -4 Bing. 720 (1828); Jones v. Broadhurst, 9 C. B. 181 (1850); Smith v. Vertue, 30 L. J. C. P. 60 (1860); Cox v. National Bank, 100 U. S. (10 Otto) 712 (1879); C. C. Art. 2294. The position of the drawer and indorsers after dishonor of a bill is analogous in several respects to that of a surety: Cook v. Lister, 32 L. J. C. P. 127 (1863); Rou- § 54. quette v. Overmann, L. R. 10 Q. B. 536 (1875); Duncan v. North & S. W. Bank, L. R. 6 App. Cas. 19 (1880). See Harmer v. Steele, 4 Exch. 13 (1849), on the relation of several joint acceptors who are not partners. Drawees who have promised to accept or who have knowingly accepted the benefit of funds obtained on a representation that they would accept, have been held liable: Torrance v. Bank of British North America, 12 L. C. J. 325; 15 L. C. J. 169; 17 L. C. J. 185; L. R. 5 P. C. 246 (1873); Molsons Bank v. Seymour, 21 L. C. J. 82; 23 L. C. J. 57 (1878); Bank of Montreal v. Thomas, 16 Ont. R. 503 (1888). See section 26 as to an acceptor signing as an agent, or in a representative character. acceptor. (b.) Is precluded from denying to a holder in Estoppel of due course forged (1.) The existence of the drawer, the genuineness As to of his signature, and his capacity and authority to signature. draw the bill; Imp. Act, s. 54 (2) (a). Section 24 provides that subject to the provisions of the Act, a forged or unauthorized signature is wholly inopera. tive. The present is one of the provisions which modify that section. This has long been recognized as law: Jones v. Goudie, 3 Rev. de Leg. 28 (1813); McKenzie v. Fraser, ibid. 30 (1825); Ryan v. Bank of Montreal, 12 O. R. 39 (1886); 14 Ont. A. R. 533 (1887); Jenys v. Fowler, 2 Str. 946 (1732); Cooper v. Meyer, 10 B. & C. 468 (1830); Sanderson v. Collman, 4 M. & Gr. 209 (1842); Vagliano v. Bank of England, [1891] A. C. 107; Hoffman v. Bank of Milwaukee, 12 Wall. (U.S.) 193 (1870); Bank of U. S. v. Bank of Georgia, 10 Wheat. (U.S.) 333 (1825). If the bill be materially altered the acceptor is not pre- As to altercluded from setting this up: Burchfield v. Moore, 23 L. J. ed bill. § 54. Q. B. 261 (1854); Young v. Grote, 4 Bing. 253 (1827); Marine Nat. Bank v. National City Bank, 59 N. Y. 67 (1874). But where a bank issued a draft for $25 on one of its branches without advice, and the holder raised it to $5,000 and deposited it in another bank which drew the money, and the forgery was discovered six days later, it was held that the bank which had paid could not recover back: Union Bank v. Ontario Bank, 3 L. N. 386; 24 L. C. J. 309 (1880). Estoppel ity of draw (2.) In the case of a bill payable to drawer's as to capac order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement; Imp. Act, s. 54 (2) (b). er. If bill indorsed ceptance. The first part of this sub-section follows from the preceding one, for if the drawer has capacity to draw a bill, he has also capacity to indorse. When he has accepted such a bill, the acceptor is precluded from setting up that the drawer was an infant, an insane person, a married woman (where this is a disability), or a corporation without power to contract by bill: Taylor v. Croker, 4 Esp. 187 (1803) (infant); Smith v. Marsack, 6 C. B. 486 (1848) (married woman); Stoutimore v. Clark, 70 Mo. 477 (1879) (corporation). Where a bill is drawn by an agent he might have authority to draw but not to indorse. For illustrations of this, see Robinson v. Yarrow, 7 Taunt. 455 (1817); Garland v. Jacomb, L. R. 8 Ex. 216 (1873). It was for some time a disputed point whether an before ac acceptance admitted the genuineness and validity of the indorsement if a bill was indorsed before acceptance : Robarts v. Tucker, 16 Q. B. at p. 576 (1851); Ashpitel v. Bryan, 3 B. & S. 489 (1863). Before the Act it was, however, settled in Ontario that this did not preclude the acceptor: Ryan v. Bank of Montreal, 14 Ont. A. R. 533 (1887). § 54. Before the Act of 1882 it was held in England that when a bill is accepted in blank for the purpose of being negotiated, and is afterwards filled in with the name and signature of a person as drawer and indorser, the acceptor cannot, as against a bona fide indorsee for value, adduce evidence to show that either the drawing or indorsement is a forgery: London and S. W. Bank v. Wentworth, 5 Ex. D. 96 (1880). of payee capacity. (3) In the case of a bill payable to the order of Existence a third person, the existence of the payee and his and his then capacity to indorse, but not the genuineness or validity of his indorsement. Imp. Act, s. 54 (2) (c). A plea by an acceptor, that subsequent to his acceptance the payee became insolvent and indorsed it to the plaintiff without the knowledge of the assignee, held to be a good defence: Maclellan v. Davidson, 20 N. B. (4 P. & B.) 338 (1880). As to forgery of the indorsement of the payee or want of authorization of his signature, see section 24. Where the payee is fictitious or non-existing, the holder may treat the bill as payable to bearer: section 7, s-s. 3. This is the law even when the acceptor is not aware that the payee is a fictitious person: Vagliano v. Bank of England, [1891] A. C. 107. drawee. 55. The drawer of a bill, by drawing it— (a.) Engages that on due presentment it shall Liability of be accepted and paid according to its tenor, and that if it is dishonored he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonor are duly taken ; |