Property Act does not make it competent for a married S. 22. woman to assign her estate or prospective income without her husband's consent, though it makes the income of her estate payable to her own order.1 The holder is apparently entitled to receive payment from a party incapable of contracting, though he may not enforce the bill against him. He is also entitled, if the drawee of a bill is without capacity to contract, to treat it as a bill of exchange or as a promissory note,2 and if the payee is without capacity to contract, to treat it as a bill payable to bearer.3 C 23. No persona is liable as drawer, indorser, or S. 23. acceptor of a bill who has not signed it as such: Provided that g f (1.) Where a person signs a bill in a trade or h (2). The signature of the name of a firm is equi- a See s. 2. b See s. 55 (1). c See s. 55 (2). ₫ See s. 54. Only the addressee can sign as acceptor.* • An official of a company who issues a bill in which the name of the company is not set forth, is liable under the Companies Acts for the amount of the bill.5 A person who promises to accept a bill may be liable on his promise, and a transferor by delivery on the consideration.7 If an agent signs bills in his own name, though in connection with his principal's business, the principal is not 1 44 and 45 Vict. c. 21, s. 1. 2 S. 5 (2). 3 S. 7 (3). 4 S. 3, n.b No. 4. 5 25 and 26 Vict. c. 89, s. 42, p. 257 infra. 6 S. 17, n.d No. 2. 7 S. 58 (2). Signature essential to liability. S. 23. liable on them. Further, he is not liable for the consideration paid to the agent by an endorsee even though he has indirectly received it, for example, though the agent has applied the proceeds of the bill in payment of a debt of the principal's, or to the reduction of his own indebtedness to the principal. Yet when a bill was granted by a partner or joint adventurer in his own name for the purposes of the venture, all the partners were held liable for it; and the real owners of a business were held liable for a note indorsed 2 3 by their manager in his own name for the purposes of the business. But in both these cases the liability arose rather on the whole facts than on the instruments.5 A person who signs a bill as agent for another without authority to do so is liable, not on the bill, but for damages in respect of the warranty that he has authority, which is implied by his signature. But one who signs for a fictitious or non-existing principal is liable on the bill. 7 6 f As to the liabilities of a person who becomes a party to a bill under more than one firm, see s. 5 (n.c). If the name of the acceptor subscribed on the bill be different from the name given in the address, the holder may show that the name subscribed is a trade or assumed name of the drawee, but the bill will not be a warrant for summary diligence. g A man who had given his wife authority to accept a bill for him in her own name, was held to be liable thereon, as if he had himself accepted it under an assumed name.9 1 Telford v. James, 1822, 1 S. 290 (n.e. 269), rev. 1824, 2 S. App. 219; North British Bank v. Ayrshire Iron Co., 1853, 15 D. 782; Ross, Skolfield, and Co. v. State Line Steamship Co., 1875, 3 R. 134, action laid on bill amended so as to depend on facts; see Bank of Scotland v. Watson, 1813, 5 Paton, 655; Thomson, 152. 2 Telford v. James, cit.; North British Bank v. Ayrshire Iron Co., cit.; see as to unauthorised signatures by agents Reid v. Rigby and Co. [1894], 2 Q.B. 40; and Sinclair, Moorhead, and Co. v. John Wallace and Co., 1880, 7 R. 874, s. 25, n., p. 52. 3 British Linen Co. v. Alexander, 1853, 15 D. 277. 4 Murray v. Campbell, 1827, 6 S. 147; see also Lindus v. Bradwell, infra. 5 See 1 Bell's Com. 449. 6 Polhill v. Walter, 1832, 3 B. & Ad. 114; West London Commercial Bank v. Kitson, 1884, 13 Q.B.D. 360; see Richardson v. Williamson, 1871, L.R. 6 Q.B. 276; Thomson, 155. 7 M'Meekin v. Easton, 1889, 16 R. 363; see Kelner v. Baxter, 1866, L.R. 2 C.P. 174. 8 Thorburn, 68. 9 Lindus v. Bradwell, 1848, 5 C.B 583, 17 L.J. C.P. 121. See the Partnership Act, 1890.1 4 i This proviso has been drawn in accordance with the English view that a firm has no existence apart from its members, and that each partner is the agent of his copartners,2 rather than with the Scotch theory that a partnership is a legal persona, of which each partner is the agent.3 When this Act was passed, a partner's share of the assets of an English firm were liable for his debts to the same execution as his separate property; and this sub-section was apparently intended to mean that a bill signed by a firm should be read as if it bore the personal signature of the partner signing and the personal signatures of the other partners per procuration of him. In Scots law a bill signed by the partners individually is not on the face of it a partnership bill. It would not warrant summary diligence against the firm, and in bankruptcy it would, at least prima facie and as an instrument, give rise to rights and liabilities different from those arising on a bill bearing the firm's signature. This difficulty is not met by section 97 (2), for this proviso is expressly inconsistent with the law of Scotland. Yet in view of its obvious purpose the proviso should evidently be construed in Scotland with reference rather to that purpose and to the common law of Scotland than to its precise terminology, and accordingly should be taken to mean, that notwithstanding the principal enactment of this section partners shall be liable in accordance with the Scots law of partnership for bills signed by their firm.8 The holder of a bill bearing a name which is that of a firm as well as of one of the partners, is not entitled in his option to sue either the firm or the individual. Whether he took the bill as the firm's or as the individual's, he may sue only the person truly liable. But there is a presumption, at least if the individual carries on no separate business, that the bill is the firm's.9 If the firm is in point of fact the S. 23. S. 23. debtor, all the partners may be charged on a decree or bill in the individual name.1 S. 24. Forged or unauthorised signature. 24. Subject to the provisions of this Act,a where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be," the forged or unauthorised signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority.a Provided that nothing in this section shall affect the ratification of an unauthorised signature not amounting to a forgery.* 2 a By sections 60, 80, and 82 certain exceptions are made in favour of bankers. By sections 54 (2) and 55 (2) acceptors and indorsers of bills are personally barred from denying the genuineness of certain signatures thereto. Under section 7 (3) a bill payable to a fictitious person may be transferred by a fictitious signature, though to sign a bill with a fictitious name may amount to the crime of forgery. As regards the fraudulent completion of bills there is this distinction, that if an inchoate bill or a signature intended to be made into a bill is completed contrary to the authority given, the rights of parties are regulated by section 20, but if a bill is fraudulently written over a signature not intended for that purpose, this is a forgery under the criminal law,3 and also under this section.4 The fraudulent alteration of a bill is a forgery.5 b This section also applies to a genuine signature which S. 24. the person signing is duped into adhibiting to a bill without knowing that he is doing so, or over which, without its having been intended for that purpose, a bill is fraudulently written.1 c Even a person who acquires a forged bill in good faith and for value without notice of the forgery, acquires no right against any one who was a party to the bill prior to the forgery. Thus if a bill drawn by A. payable to B. is stolen and thereafter taken by C. in good faith and for value with B.'s signature forged on it, and indorsed by C. to D., D. can recover from C. but cannot recover from A. A defect of title, on the contrary, affects the right only of those who have notice of it.2 As to the effect of payment being made to a person deriving his title through a forgery, see s. 59, n.d There is no conclusive decision as to the onus of proof when a bill is alleged to be forged. In the case of Gellatly v. Jones,3 Lord President Boyle in charging a jury said that the onus undoubtedly lay upon the person impugning the signature. This rule was assumed to be correct in Rathbone v. Glenny, Findlay v. Currie,5 Frost v. North of Scotland Banking Co., and M'Kenzie v. British Linen Co.,7 but it appears to be open to reconsideration.8 In Tarbet v. Anderson, Lord Kincairney expressed the opinion that the onus should be on the bill-holder. It has been decided that the burden of proving that a document is holograph lies on the person founding on it,10 and this rule appears to apply a fortiori to proof of the genuineness of the signature of a privileged. document. 9 d An indorser is precluded from denying the genuineness of the drawer's and all of previous indorsers' signatures,11 and an acceptor, from denying the genuineness of the drawer's sig |