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Sec. 19. non in hæc fædari veni : Story on Bills, s. 240. An acceptance is, wherever
possible, to be construed as general and not qualified : Chalmers on Bills,
Words which are alleged to qualify an acceptance should be construed most strongly against the acceptor : Decroix v. Meyer, 25 Q. B. D. 343.
Parol evidence cannot be received to show, that a bill of exchange accepted payable three days after sight, was accepted on condition that it was not to be paid till a further time had elapsed
: Bradbury v. Oliver, 5 U. C. 0. S. 703 ; s.p., Hayes v. Davis, 6 U. C. Q. B. 396 ; Hull v. Francis, 4 U. C. C. P. 210; Harper v. Paterson, 14 U. C. C. P. 538 ; Stott v. Fairlamb, 49 L. T. Rep. 526.
But as between the immediate parties to the bill, a written agreement may vary or control its legal effect: Bowerbank v. Monterio, 4 Taunt. 844.
An acceptance on a draft: “We will keep the sums from the first estimate of M. & Co., as requested above, provided they have done sufficient work to earn that sum,” is not conditional : McLean v. Shields, 1 Man. R. 278.
A conditional acceptance becomes as effectual as an absolute one, when the condition is complied with : Miln v. Prest, 4 Camp. 393.
If the payee of a bill annexes a condition to his indorsement, and the drawee afterwards accepts it, he is bound by that condition, and if the condition be not performed, the property in the bill reverts to the payee, and he may recover the amount against the acceptor : Robertson v. Kensington, 4 Taunt. 30.
Where a bill has been accepted on a condition to be performed by B., the performance of such condition by C., will not be a compliance with the conditional acceptance : Swan v. Cox, 1 Marsh. 176.
A bill accepted “payable on giving up bill of lading for 76 bags of cloverseed per Amazon, at the London and Westminster Bank, Borough Branch," is a conditional acceptance to this extent, that the holders are only entitled to receive the amount on delivering over to the acceptor the bill of lading, but the condition was satisfied by the handing over of the bills of lading, and presenting the bill of exchange the day after that on which it became due: Smith v. Vertue, 9 C. B. N. S. 214; 3 L. T. N. S. 583.
An acceptance to pay “when the goods conveyed to me are sold,” is conditional : Smith v. Abbot, 7 Stra. 1152.
An acceptance to pay "when in cash for the cargo of the ship A.” is Sec. 19. conditional : Julian v. Scholbrooke, 2 Wils. 9.
An acceptance to pay “even if the ship were lost,” is conditional, depending upon two events : the ship's arriving at London, or being lost : Sproat v. Matthews, 1 T. R. 182.
2 Prior to this enactment, R. S. C. c. 123, s. 16 provided that unless the bill or note expressed on the face of it that it was payable at a particular place “only and not otherwise or elsewhere,” it was payable generally ; but, that if such words were in the acceptance of the bill, or promise in the note, “then such acceptance or promise shall be deemed and taken to be a qualified acceptance and promise, and the acceptor or maker shall not be liable to pay the bill or note, unless payment has been first only demanded at such bank, or other place.” This Act has not continued the provision requiring the words “only and not otherwise or elsewhere” to be inserted in the acceptance of a bill ; but the acceptor may nevertheless use them or similar words, and so take his acceptance out of the definition of a general acceptance. The words are retained in the English Act. See further note 5 to s. 45, and ss. 52 and 86.
ILLUSTRATIONS. A bill drawn payable to the drawer's order, in London, and accepted payable there, is a general acceptance · Fayle v. Bird, 6 B. & C. 531.
A note made in Upper Canada, payable in Glasgow, not adding," and not otherwise or elsewhere,” is payable generally; and the plaintiff cannot recover the difference of exchange on such note : Wilson v. Aitkin, 5 U. C. C. P. 376.
A note drawn in Boston where both maker and payee resided, and made payable, “at any bank,” means any bank in Boston: Baldwin v. Hitchcock, i Han. N. B. 310.
3 ILLUSTRATIONS. A foreign bill, drawn for £127 18s. 4d., was accepted by the drawee for £100 only; held that the partial acceptance was good pro tanto, within the custom of merchants : Wegersloffe v. Keene, 1 Stra. 214.
B. drew a bill on A. or order requesting him to pay K. “ the amount of my account furnished. On presentment A. wrote on it “correct for $75," and signed the initials of his name :--Held, not a bill: Kennedy v. Adams, 2 Pugs. N. B. 162.
A bill was drawn upon B. who accepted it thus : “I do accept this bill to be paid half in money and half in bills.” It was proved by divers merchants that the custom among them was that there might be a qualification of an acceptance, for he may refuse the bill totally, or may accept it in part; and the holder may refuse and protest the bill ; and though there be such acceptance he hath the same liberty of charging the drawer: Petit v. Benson, Comber. 452.
4 ILLUSTRATIONS. A bill was drawn out dated 8th April, 1707, without specifying the day on which it was to be payable. A. accepts it payable on the 18th April. Held the acceptor is bound by the custom of merchants to pay at the time appointed : Walker v. Atwood, 11 Mod. 190.
A bill dated 8th September, 1856 drawn payable in London four months after date was accepted thus: “Accepted at O. G. & Co., London, due llth December, 1856; B. & Co.” Held, if a question of law that the bill was accepted according to its tenor ; but if a question of fact, there was evidence to shew that words, “duellth December, 1856,” were not intended to qualify the acceptance : Fanshawe v. Peet, 2 H. & N 1.
A bill drawn 28th November, 1836, payable forty-two months after date, was accepted thus : “ Accepted on condition of its being renewed until November 28th, 1844, without interest, payable by me at W. & D. bankers, London.” Held, a good acceptance, and that the bill was properly payable on 28th November, 1844 : Russell v. Phillips, 14 Q. B. $91: 14 Jur. 806.
5 ILLUSTRATIONS. One who accepts in his individual name a bill addressed to the firm of which he is a member, gives a qualified acceptance, and is individually liable thereon : Owen v. Van Uster, 10 C. B. 318.
A promissory note made to C. and D. jointly, was indorsed by C. alone to B., and by B. to A. :-Held, that B. was liable as indorser, and could not set up as a defence to an action by A. that D. had not joined in the indorsement: Thurgar v. Clarke, 2 Kerr N. B. 370.
A bill or note drawn, accepted or indorsed by one of two solicitors in the name of the firm, must be proved to have been drawn, accepted or indorsed by the authority of the other partner ; but in the case of a commercial firm this is not necessary, as there is, in that case, a general authority in each partner presumed : Lery v. Pyne, Car. & M. 453.
See further notes to ss. 22 and 23.
Blank acceptance may be made a bill.
20. Where a simple signature on a blank paper is
delivered by the signer in order that it may be converted Ind. Act,s.20. into a bill, it operates as a prima facie authority 1 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 ;2 and, in like manner, when a bill is wanting in any material particular, the person in possession of it has a prima facie authority to fill up the omission in any way he thinks fit:3
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 Limit as to a reasonable time, 4 and strictly in accordance with the authority. authority given ; 5 reasonable time for this purpose is a
question of fact :
When completed is enforceable.
Provided, that if any such instrument, after completion, entornoe may is negotiated to a holder in due course, it shall be valid and
Subsequent holder in due
effectual for all purposes in his hands, and he may enforce Sec. 20. it as if it had been filled up within a reasonable time and strictly in accordance with the authority given. 6
Prima facie authority.” The law defines the nature and amount of the evidence which is sufficient to establish a prima facie case, and to throw the burden of proof on the other party ; and if no opposing evidence is offered, the jury are bound to find in favour of the presumption : 1 Taylor on Evidence, 115. Where the law presumes the affirmative of any fact, the negative of such fact must be proved by the party averring such negative : Williams v. East India Company: 2 East 192. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought; under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said not to be proved, when it is neither proved nor disproved : Indian Evidence Act, 1872, s. 3.
Where one B. signed his name on a blank acceptance, intending to become the the acceptor of a bill, but placed it in a drawer at his chambers, from whence it was stolen, and one c. tilled it up and negotiated it with a bona file holder for value ;-Held, that as the instrument was stolen without B.'s negligence, and as he had not parted with it, nor authorized it to be filled up, B. was not liable : Baxendale v. Bennett, 3 Q. B. D, 525.
If a man writes his name upon a blank piece of paper, and another person obtains possession of the name, and, without authority to use it for any purpose, writes a promissory note over the same, and negotiates it, such note is not valid, in the hands of an innocent holder, against the person whose name is subscribed to it: Nance v. Lary, 5 Ala. 370.
“Where a man loses or parts with his name written on a piece of stamped paper he is responsible to any bona fide holder when it is filled up as a promissory note :” Per Byles, J., in Swan v. North British Australian ('0., 32 L. J. Ex. 278. But if a blank acceptance not delivered, is lost or stolen without the writer's negligence, he is not liable : Byles on Bills, 187.
F. of the firm of L. & Co. gave an acceptance purporting to be made by the firm, with a blank for the name of the drawer.
C. gave it to H. for value. H. filled up the bill, putting the name of his firm, H. & Co. as drawers, and indorsed it to himself, knowing when he did so that F. had no authority to accept the bill :-Held, that L. & Co. were not liable on the bill at the suit of H. Semble, that a bona fide holder for value to whom the bill had come in a perfect state, would have been entitled to sue : Hogarth v. Latham, 3 Q. B. D. 643.
2 ILLUSTRATIONS. Where the defendant signed, as maker, a printed form of note, and handed it to A., by whom it was filled up for $855, and plaintiff afterwards became indorsee of it for value without notice ;-Ħeld, that the defendant was liable, though it might have been fraudulently or improperly filled up or indorsed : McInnes v. Milton, 30 U. C. Q. B. 489.
An instrument in the form of a bill of exchange, but accepted with the drawer's name in blank, does not exist as a bill until the drawer's name is inserted, and even then does not create a debt against the parties to it, until value has been given for it: Ex parte Hayward, L. R. 6 Ch. 546.
Where the payee and indorser of a note indorsed it for the accommodation of the maker, leaving the date and sum blank, which were afterwards filled up by the maker, and the note dated of a time later than the blank was indorsed, but prior to the time when the note was actually filled up ;-Held, that the note was good against the indorser, notwithstanding the alteration : Sanford v. Ross, 6 U. C. 0. S. 104. .
Where a note is signed and delivered, with a blank left for the sum payable though the first holder is restricted as to the amount to be inserted, yet, if the note comes into the hands of another, who, without notice of the restriction, fills the blank with a larger sum, the maker will be bound by it: Bank of Commonwealth v. Curry, 2 Dana. (Ky.) 142.
It is no objection to the validity of a note, that when indorsed to the plaintiffs it was not signed by the maker; the subsequent filling up of the maker's name, or of the amount, or of a payee's name, will be treated as if made before the indorsements : Rossin v. McCarty, 7 U. C. Q. B. 100.
Where a bill which had a blank space left for the drawer's name, came into possession of an administratrix, after it was overdue, and she inserted her own name as drawer ;-Held, that she was entitled to insert her name as drawer, and sue on the bill as administratrix : Scard v. Jackson, 34 L. T. Rep. 65n ; s. p. Dutch v. O'Leary, 5 Ir. L. R. 92. Any bona fide holder of a note drawn payable to
or order, may insert his own name in the blank as payee : Mutual Safety Ins. Co. v. Porter, 2 All. N. B. 230.
3 Section 12 authorizes the holder of any undated bill payable at a fixed date after sight, to insert the true date. This section applies to all kinds of bills, which, in the hands of a “person in possession,” may be “wanting in any material particular,” and authorizes such person to fill up the omission in any way he thinks fit.” The expression “person in possession," must be read with the limitations shewn in the cases cited. See the definition of “holder" in s. 2; and also in s. 29, where “holder in due course” is defined to be “one who has taken a bill complete and regular on the face of it.”
ILLUSTRATIONS. A. held a note of B. with divers indorsers, which at maturity was arranged to be renewed. B. drew another note, which he signed, and to which he obtained the signature of the other indorsers; the time of payment was left blank, but B. , represented to some of the indorsers that four months was the time agreed upon. A., however, had no understanding on this point with any of the indorsers, and after he received the note, he filled in the time of payment as three months ;-Held, that