« السابقةمتابعة »
§ 19. give due notice of the partial dishonor: section 44, 8-8. 2; Pothier, Change, No. 49; Code de Commerce, Art. 124.
List not exhaustive.
(c.) Qualified acceptance as to time.-The acceptor may vary the time of payment named by the bill; and if none be named he may fix a time and he will be bound by it Walker v. Atwood, 11 Mod. 190 (1709); Russell v. Phillips, 14 Q. B. 891 (1850); Pothier, Change, No. 49.
(d.) Acceptance by Part of Drawees.-If there are several drawees and they do not all accept, those who do are bound. A partner may accept in his own name a bill addressed to his firm and it is a valid acceptance: Owen v. Von Uster, 10 C. B. 318 (1850).
The list of qualified acceptances given in this section may not cover the whole ground. Any acceptance which by its terms varies the effect of the bill as drawn would be a qualified acceptance, although it might not literally be within any of the classes enumerated. Of the corresponding section in the Imperial Act, the Master of the Rolls says, in Decroix v. Meyer, 25 Q. B. D. 348 (1890):-" I think it is true to say that in section 19 of the Act the examples given of a qualified acceptance are not exhaustive and that there might be other cases of qualified acceptances, when the acceptance in express terms varied the effect of the bill as drawn."
20. Where a simple signature on a blank paper is delivered by the signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount, using the signature for that of the drawer, or the acceptor, or an indorser; and, in like manner, when a bill is wanting in any particular, the person in possession of it has a prima facie authority to
fill up the omission in any way he thinks fit: Imp. § 20. Act, s. 20 (1).
This section applies to notes as well as to bills, and is copied from the Imperial Act with the omission of the reference to stamps. In England the signature must be on "blank stamped paper," and it can only be filled up for an amount that "the stamp will cover." This is a great aid in checking fraud. It is to be observed that the paper must have been delivered by the signer in order that it might be converted into a bill or note, and the onus of proving this delivery is on the holder. Once it is proved that it was so delivered, the onus is shifted, and it is then for the signer to prove that it was not filled up within a reasonable time or in accordance with the authority given. The particular case of an undated bill which is payable at a fixed period after date, or an undated acceptance of a bill payable at sight or at a fixed period after sight had already been provided for by section 12.
1. Where the payee of a note indorsed it with the date and amount blank, he was held liable to an innocent indorsee for the note as filled up: Sandford v. Ross, 6 U. C. O. S. 104 (1841).
2. An indorser of a note who signs before the maker or payee, and before the amount is filled up is liable on the note as completed: Rossin v. McCarty, 7 U. C. Q. B. 100 (1850).
3. The maker of a note delivered it with the amount in blank. It was fraudulently filled up for $855. He was held liable to an innocent indorsee: McInnes v. Milton, 30 U. C. Q. B. 489 (1870).
4. Where defendant indorsed as payee a note for $500, on which there was a blank space to the left of the word "five," which the maker fraudulently filled up with the word "twenty," the indorser was held liable for $2,500 to an innocent indorsee: Dorwin v. Thomson, 13 L. C. J. 262 (1869).
$ 20. 5. A writing in the form of a note, which was written over the signature of the maker, given merely for the purpose of indicating his address, cannot be recovered on: Ford v. Auger, 18. L. C. J. 296 (1874).
6. Where a signature was obtained ostensibly for a receipt, and a note was written over it, the signer is not liable: Banque Jacques Cartier v. Lescard, 13 Q. L. R. 39 (1886).
7. A note, signed in blank and sent with instructions to be filled up for $115, was filled up for $461. Held, that the maker was liable for the full amount to a holder in due course: Bank of Nova Scotia v. Lepage, M. L. R. 6 S. C. 321 (1889).
8. A note payable to- -or order cannot be recovered by the person to whom it was given, either as payee or bearer, without inserting his name in the blank as payee: Mutual Safety Ins. Co. v. Porter, 7 N. B. (2 Allen) 230 (1851).
9. A. indorsed a note for the accommodation of the maker on condition that B. should indorse also. The maker issued it without B.'s indorsement. Held, that a holder in due course could not recover from A.: Ontario Bank v. Gibson, 3 Man. L. R. 406 (1886); 4 Man. L. R. 440 (1887).
10. A bill is drawn payable to- -or order. Any holder for value may write his own name in the blank and sue on the bill: Crutchly v. Mann, 5 Taunt. 529 (1814).
11. A note is signed by one maker on condition that another sign as joint maker. The person to whom he gives it fills it up without the other signature and negotiates it. A holder in due course cannot recover: Awde v. Dixon, 6 Ex. 869 (1851).
12. Where a blank acceptance was stolen from the desk of the signer and filled up, he was held not liable to a holder in due course: Baxendale v. Bennett, 3 Q. B. D. 525 (1878).
When to be 2. In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it
must be filled up within a reasonable time, and § 20. strictly in accordance with the authority given; reasonable time for this purpose is a question of
Provided, that if any such instrument, after As to subsecompletion, is negotiated to a holder in due course, it shall be valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given. Imp. Act, s. 20 (2).
Where a contract imports performance within a reasonable time, extrinsic evidence of all the material circumstances is necessarily admissible to determine what is a reasonable time for the purpose: Ellis v. Thompson, 3 M. & W. 445 (1838); Attwood v. Emery, 1 C. B. N. S. 110 (1856); Goodwyn v. Cheveley, 4 H. & N. 631 (1859); Brighty v. Norton, 3 B. & S. 305 (1862); Toms v. Wilson, 4 B. & S. 455 (1862); Hales v. London & N. W. Ry. 4 B. & S. 66 (1863).
It is for the party seeking to enforce the bill to account for the delay if it has been unusual.
Where a debtor gave his creditor a blank promissory note and subsequently failed, and the creditor did not fill up the note until after he had obtained his discharge five years later, the jury found that the delay was not unreasonable under the circumstances and the verdict was upheld: Temple v. Pullen, 8 Ex. 389 (1853).
"The authority given."-The onus is on the signer seeking to escape liability to prove that the authority given has been exceeded, as the holder has prima facie · authority to fill it up as he sees fit. If no instructions
§ 20. have been given or are proved, the bill will be upheld. Any person taking a bill in an incomplete state is exposed to this defence except, in the case of the want of a date in section 12. Death revokes the authority to fill up a bill unless the holder be a holder for value. The liability of the signer begins when the bill is first issued complete in form, and not when he signs.
"Holder in due course."-The preceding limitations, as to time and authority, have no application to one who takes a bill complete and regular on the face of it before maturity, in good faith and for value without notice of dishonor or defect: sections 29 and 38; Hanscombe v. Cotton, 15 U. C. Q. B. 42 (1857); Merchants Bank v. Good, 6 Man. L. R. 339 (1890). The instrument so taken must have been originally delivered as a bill, or delivered in an incomplete state in order that it might be converted into a bill.
1. A partner having authority to do so gives a blank acceptance in the name of his firm and dies. It may be filled up and enforced against the surviving partners: Usher v. Dauncey, 4 Camp. 97 (1814).
2. After the death of the signer of an accommodation acceptance it was filled up in the presence of a person who discounted it. The latter cannot recover from the estate of the acceptor : Hatch v. Searles, 2 Sm. & G. 147 (1854).
3. A debtor gives a blank acceptance to a creditor who dies without filling it up. The administrator has a right to fill it up using his own name as drawer: Scard v. Jackson, 34 L. T. N. S. 65 (1875).
4. A partner gives without authority a blank acceptance of his firm. It is subsequently negotiated in an incomplete state to a holder for value who completes it. The latter cannot recover on the bill: Hogarth v. Latham, 3 Q. B. D. 643 (1878).