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Where after a note is completed, it is signed by a third party, or is so signed by him after maturity, without any consideration or agreement to extend time, such third person is not liable : Ryan v. McKerral, 15 Ont. R. 460.
When a man's name is written on the back of a bill or note without the intention to indorse, and so to make himself liable for it, he is not so liable. Though he put his name on the back, that is a writing, but it is not an indorsement in the legal sense of the term. The writing must always be done animo indorsandi, in order to make it effectual to bind the indorser : Keene v. Beard, 6 Jur. N. S. 1248.
Where A. as surety indorsed a note in blank, payable to B., but not negotiable;—Held, not liable as maker: McMurray v. Talbot, 5 U. C. C. P. 157.
A. drew a bill on B. requiring C. to be a surety. The bill was accepted by B. and also by C., each writing his name on it : Held, C. not liable as acceptor : Jackson v. Hudson, 2 Camp. 447. “I know of no custom or usage of merchants according to which if a bill is drawn upon one man, it may be accepted by two. A bill may be accepted by the drawee, or failing him, by some one for the honor of the drawer :" Per Lord Ellenborough, C. J., Ibid.
A party had indorsed the bill as surety, but had signed his name after that of the payee ;-Held, that the payee could not recover against him, as he was a party to the note subsequent to the payee himself: Jones v. Ashcroft, 6 Ū. C. 0. S. 154.
Y. signed a non-negotiable note and H., who agreed to be his surety wrote across the back"
a joint note, or better than a joint note," and signed it ;-Held, that H. was liable as maker : Piers v. Hall, 2 Pugs. & Bur. 34.
Where A., not a payee, puts his name on the back of a promissory note payable to B. or order, before it is delivered to the payee to take effect as a promissory note, he is liable as maker : Bell v. Moffat, 4 Pugs. & Bur. 121.
Where A. B. &. S. M. assigned their stock in trade to trustees to carry it on in the name of S. M., and S. M. was employed by the trustees as their agent, and indorsed bills which he discounted and applied the proceeds, partly to the business and partly for his private purposes ;-Held, that the signature of S. M. to the bills was prima facie, the signature of the trustees: Furze v. Sharwood, 2 Q. B. 388; 6 Jur. 554.
In an action on a note payable to J. H. and indorsed by J. H. to the plaintiff, it appeared that there were two persons of the same name, father and son, and there was no evidence to show to which of them the note had been given, but it appeared that the indorsement was in the handwriting of the son ;-Held, that although prima facie the presumption would be that the father was meant, that presumption was rebutted by the son's indorsement : Stebbing v. Spicer, 8 C. B. 827.
2 Trade names, as well as trade niarks are in a certain sense property ; and where the name of a manufacturer is used to designate goods of his make, it will be protected in equity: Ainsworth v. Walmsley, L. R. 1 Ex. 518. But where the name is merely descriptive of the nature of the business and the locality, and is not so inseparably connected with the establishment that a secondary meaning may be attributable to it, will not be
protected : Robinson v. Bogle, 18 Ont. R. 387. The assumption of a name belonging to another by a stranger, is not the subject of an action, as there is no right of property in a person to the use of a particular name, except in connection with a trade or business : Du Boulay v. Du Boulay, L. R. 2 P. C. 430. Assuming and using a fictitious name, though for the purposes of concealment and fraud, will not amount to forgery : Rex v. Boulton, R. & R. 260.
ILLUSTRATIONS. Where four persons described in a contract not by their individual names but as a collective body, and not incorporated, signed with their own names, they were held to be individually liable: Cullen v. Nickerson, 10 U. C. C. P. 549.
One J. employed B. as manager of his business, to carry it on for him in the name of B. & Co. The drawing and accepting bills were incidental to the carrying on of such business ; but it was stipulated between them that B. should not draw or accept bills. B. having accepted a bill in the name of B. & Co. ;-Held, that J. was liable on the bill in the hands of an indorsee who took it without any knowledge of the relations of J. & B. or the business : Edmunds v. Bushell, L. R. 1 Q. B. 97.
3 The signature of a firm is deemed to be the signature of all persons who are partners in the firm, whether working, dormant, or secret, or who, by holding themselves out as partners, are liable as such to third parties : Pooley v. Driver, 5 Ch. D. 458.
ILLUSTRATIONS. A note of a firm carrying on business as bankers, was signed by one of them in the following form: “I promise to pay the bearer on demand five pounds; value received. For J. C., R. M., J. P., and T. S., R. M.;"—Held, that the holder of this note had not a separate right of action against the party so signing, but that the firm was liable : Ex parte Buckley, 14 M. & W. 469; s. p. Lord Galway v. Matthew, 10 East 264.
A. who was a cheesemonger at Woolwich, carried on at Woolwich the hosiery trade in partnership with C., but in his own name. C. accepted in the name of A. a bill drawn for goods supplied to the partnership, and which was addressed to A. at Woolwich :-Held, that the acceptance was binding on A. although the bill was not addressed to the place
where the partnership business was carried on : Stephens v. Reynolds, 5 H. & V. 513; 2 L. T. N. S. 222.
In the absence of express agreement to that effect, a creditor taking the note of one partner for a debt of the partnership, and suing thereon, but failing to recover the amount of the note, is not precluded from afterwards claiming the amount of the note against the partnership: Carruthers V. Ardagh, 20 Grant 579.
If the name of a partnership firm be merely the name of an individual partner, proof that he signed such name to a bill of exchange is not enough to make the firm liable on the bill. To establish the liability, the holder of the bill must further prove that the signature was put to it for the purposes of the firm : Yorkshire Banking Co. v. Beatson, 4 C. P. D. 204.
On the dissolution of a firm it was agreed that an agent should be appointed to realize the assets, and that the business should thereafter be carried on by one of the retiring partners. Bills on the old firm were
Sec. 23. accepted by the agent in his own name, and that of the partner ;-Held,
that the agent had no authority so to accept such bills, and the partner was not liable : Odell v. Cormack Bros., 19 Q. B. D. 223.
One who takes from a member of a trading firm in satisfaction of his separate debt, a negotiable security in the name of the partnership, is bound to show that it was accepted or indorsed with the concurrence of the other parties : Leverson r. Lane, 13 C. B. N. S. 278.
In an action by indorsee against members of a firm on a bill accepted in the name of the firm, upon its being proved that the acceptance was by one of the partners in fraud of the partnership, and contrary to the partnership articles, the onus is cast on the holder of the bill, of shewing that he gave value : Hogg v. Skeen, 18 C. B. N. S. 426.
A bill drawn by a partner in the name of his firm, indorsed by him also in such name to himself, and discounted at his private bankers for his own account, cannot be proved against the joint estate of the firm, unless he had authority from his partners to act as he did, with regard to the bill, or unless the proceeds have actually been applied to partnership purposes, and the firm is indebted to his private account sufficient to cover the amount of the bill : Ex parte Darlington and Stockton Banking Co., 12 L. T. N. S. 372.
An agent of a bank discounted a note for J. N., the maker, payable to and indorsed by a firm in the partnership name, by one of the partners, the agent kuowing that it was so indorsed as security for J. N., and that it had no connection with the partnership business ;-Held, that the other partners were not liable: Federal Bank v. Northwood, 7 Ont. R. 389.
If the law protects an innocent partner in such a case as the above, it is equally strict in holding the innocent partners liable for the fraud of their co-partner in partnership matters : Per Wilson, J., Ibid.
In an action by a bona fide holder against the indorsers of a note, it is no defence that the note was indorsed by one of the defendants (a firm) fraudulently, without the authority of the other defendants, and for matters not relating to the business of the partnership : McLeod v. Carman, 1 Han. N. B. 592.
One of two attorneys in partnership has no implied authority to bind his partner by a note in the name of the firm, though given for their debt, as for money handed to the firm by a client to be laid out on mortgage : Hedley v. Bainbridge, 3 Q. B. 316 ; 6 Jur. 853.
The implied authority of one partner to bind another by a note or bill, is confined to partnerships for the purpose of trade : Ibid.
Two partners carried on business as brokers, under an ayreement that they were to get orders on commission and divide the expenses. One of them travelled for orders, and having incurred expenses, drew a bill for the first time in the partnership name, to raise funds to execute an order. The other partner accepted it, but, before it was issued, countermanded the authority to negotiate it, and it was negotiated without his knowledge ;-Held, that the mere partnership did not render him liable upon it : Yates v. Dalton, 28 L. J. Ex. 69.
A partner has no implied authority by law to bind his co-partners by his acceptance of a bill except by an acceptance in the true style of the partnership; therefore w a firm consisted of J. B. and C. H., the partnership name being J. B. only, and C. H. accepted a bill in the name of J. B. & Co. ;-Held, that J. B. was not bound thereby : Kirk v. Blurton, 9 M. & W. 284.
A bill drawn upon a firm as M. & McQ., their partnership name being Sec. 23. M. McQ. & Co., was accepted in the former name ;-Held that the firm of M. McQ. & Co. were not liable : Quebec Bank v. Miller, 3 Man. R. 17.
A bill was indorsed by the payee to another, who indorsed it, and added to their indorsement the following, “ In need S. P. & Co.” The bill was subsequently indorsed in blank to a bank, who indorsed it in blank to the plaintiffs, who indorsed it specially, “ Pay Messrs. Terney & Farley, or order” who indorsed it in blank by writing a different name, “ Thomas Terney & Farley.” The bill when due was duly presented at S. & Co., London, bankers, and was dishonored. On the same day it was presented at S. P. & Co.'s who refused to pay it, solely on the ground of the irregularity of Terney & Farley's indorsement. The custom of London bankers was admitted to be to refuse all bills, even their own acceptances, where there is a letter wrong in any indorsement. The bill was then sent to Terney & Farley, who lived in Ireland, to rectify the mistake, and the bill, with the proper indorsement on it, was then sent up to London, and again presented to S. P. & Co.'s who refused to pay it as being out of time ;-Held, that the bank was liable on the bill : Leonard v. Wilson, 2 C. & M. 589; 5 Tyr. 415.
A former partner in a firm which had dissolved, indorsed inadvertently in the firm's name, a note payable to the firm and made to it before the dissolution ;-Held, that he was personally liable : Lumberman’s Bank v. Pratt, 57 Me. 563. See also Tuten v. Ryan, 1 Spears (S. C.) 2403.
A partner has no implied authority to bind his firm by issuing acceptances of the firm in blank : Hogarth v. Latham, 3 Q. B. D. 643.
24. Subject to the provisions of this Act, 1 where a Forged or signature on a bill is forged 2 or placed thereon without ed signature the authority of the person whose signature it purports to Imp. Act, s. 24 be, the forged or unauthorized signature 3 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 Unless party enforce payment of the bill is preclued from setting up the forgery or want of authority : 4
Provided, that nothing in this section shall affect the Proviso. ratification of an unauthorized signature not amounting to a forgery: 5
And provided also, that if a cheque, payable to order, Payment on is paid by the drawee upon a forged indorsement out of cheque. the funds of the drawer, or is so paid and charged to his account, the drawer shall have no right of action against the drawee for the recovery back of the amount so paid,
Sec. 24. or no defence to any claim made by the drawee for the
amount so paid, as the case may be, unless he gives notice in writing of such forgery to the drawee within one year after he has acquired notice of such forgery; and in casu of failure by the drawer to give such notice within the said period, such cheque shall be held to have been paid in due course as respects every other party thereto or named therein, who has not previously instituted proceedings for the protection of his rights. 6
1 The provisions of the Act referred to are evidently those in s. 29 subs. 2, and 30 (1). This clause makes forged signatures, and unauthorized signatures, “wholly inoperative” to convey any title to the bill; and therefore such signatures operate as a block in the chain of title to such bill, unless the party whose signature is forged or unauthorized, is estopped from denying his liability. See further, the notes to ss. 54 and 55.
2 “Forged signature on a bill.” This section only deals with the forgery of a signature on a bill, which in effect it blots out of the bill, by declaring it to be“wholly inoperative,” so far as it affects any validity in, or title to, the bill. Section 63 deals with other classes of forgeries, "material alterations,” under which such bills are declared to be void, except as to a particeps criminis, or only to the extent of the material alteration, when in the hands of a “holder in due course. See the notes to that section, and also notes to ss. 5 and 7 as to the signature in the name of
a fictitious or non-existing person. The following acts with reference to bills and notes have been held to be forgery, if done with fraudulent intent: Writing the name of another without authority : Rex v. Dunn, 1 Leach C. C. 57; Regina v. Tuke, 17 U. C. Q. B. 296 ; Regina v. Beard, 8 C. & P. 113. Writing the name of a fictitious person : Rex. v. Marshall, R. & R. 75; Rex v. Bolland, 1 Leach C. C. 83. Writing the name of a fictitious firm : Regina v. Rogers, 8 C. & P. 629. Indorsing in the name of one of several payees, although the bill was not negotiable without the signatures of all : Regina v. Winterbottom, 2 C. & K. 37. Assuming a false name for the purposes of pecuniary fraud, Rex v. Peacock, R. & R. 278. Putting a false address to the name of the acceptor: Regina v. Epp«, 4 F. & F. 81. Writing a promissory note on a piece of paper which has on it the genuine signature of another : Rex v. Hales, 17 How. St. Tr. 161, 209, 229. Writing one's own name with the intention that it should pass for another's signature : Mead v. Young, 4 T. R. 28. Filling up a blank acceptance with a larger suin than is thorized, Rex v. Harte, 7 C. & P. 652 ; or a blank cheque, Regina v. Wilson, 2 Cox C. C. 426. Altering a bill from a lower to a higher sum : Rex v. Teague, R. & R. 33. Altering the period of payment: Rex v. Atkinson, 7 ('. &