CHAPTER Other claims a bill, We have already noticed the liability of a banker to his customer for improperly refusing to honour the latter's cheques (h), and to the rightful owner of a crossed cheque arising out of for paying it in disregard of the crossing (i), the equitable distribution of loss on an over-held cheque when the bank fails in the interim, the holder proving instead of the drawer(), and the effect as an assignment in Scotland of presentment to the drawee having funds available of a bill or cheque, the holder then presumably being able to compel payment (k), and the power to require a duplicate of a lost bill. Transfer by delivery. By Code, s. 58, a transferor by delivery of a bill or note warrants to his immediate transferee, being a holder for value, that the bill is what it purports to be, that he has a right to transfer it, and that at the time of the transfer he is not aware of any fact which renders it valueless (1). So that an action for breach of the warranty in respect of all or any of these particulars will lie at the suit of the transferee. Action on the final, it can enforce by committal (i) Ante, p. 30; Code, s. 79 (2). (1) See Gompertz v. Bartlett, each other and the subject-matter. who is not generally liable on either (ante, pp. 181, 182). CHAPTER But it is advisable to sue on the bill; first, because it XXVI. reduces the debt to a certainty; secondly, because less evidence is necessary; thirdly, because in an action on the bill proof of payment of the bill lies on the defendant; but in an action on the consideration only, if the defendant show that a bill was given, the plaintiff must prove that the bill was not paid (m). The safest course is to sue upon both (n); as might have been done formerly (o). NOTE. II. And this brings us to action on the bill, which may be either in the High Court or in the County Court. The ACTION ON principles which apply to the proceedings in the High Court THE BILL OR are for the most part common to an action in the inferior In High Court, in respect, for instance, of the right to sue, the lia- Court or bility to be sued, the joinder of plaintiffs, defendants and County third parties, and joinder of causes of action. By the Court. County Court Rules, 1889, the County Court procedure has been closely assimilated to that under the Supreme Court Rules, 1883. The subject of action will, therefore, in the text be con- Division of sidered primarily in reference to the High Court, and under the subject. the following heads :-Parties-Causes of Action-VenueProcedure, Summary and Ordinary-Pleading-Consolidation of Actions-Trial-Evidence-Damages (including interest, re-exchange and costs recovered)-Costs-Judgment ---Execution. And where any matters affecting peculiarly the County Court seem to require notice, as, for instance, the survival in that tribunal of the summary procedure under the Bills of Exchange Act, 1855, reference will be made thereto in the notes. The subjects of limitations and lost bill it has been. thought desirable to treat in separate chapters. The holder of the bill at the time of action brought, i.e., WHO MAY the person who is then entitled to receive its contents, is the SUE. only person who can then sue on it (p). (m) Hebden v. Hartsink, 4 Esp. 46; Bishop v. Rowe, M. & S. 362. (n) See post, joinder of causes of action. (0) Ryder v. Ellis, 8 C. & P. 357. and see Jungbluth v. Way, 25 L. (p) Emmett v. Tottenham, 8 Ex. 884; Gill v. Lord Chesterfield, ib.; CHAPTER JOINDER OF It is a good defence, that at the time of action commenced the bill was outstanding in the hands of an indorsee. But if such indorsee held the bill as an agent or trustee for the plaintiff, the plaintiff may sue, though not in actual possession of the bill (q), even though the agent's authority depend on a ratification after action brought (r). An indorser who pays an indorsee has no right to sue a prior party in the name of the indorsee without his consent, and the Court has allowed the defendant, as well as the indorsee, whose name has been usurped, to raise the objection (8). Prima facie any person may sue in his or her own right on a bill. But an outlaw (t) or an alien, whose country is actually at war with the Queen (u), or a felon, is absolutely incapacitated from suing in this country. A representative is, however, now provided for felons (x). An infant sues by his next friend (y). A lunatic by his committee, or, if not so found on commission, by next friend (z). A married woman, having separate property and contracting with respect thereto, may now sue as completely as a feme sole (a). And where the person who would otherwise be the holder has died (1) leaving a will, or (2) intestate, or (3) is bankrupt, or (4) convicted of felony, or (5) is an execution debtor, and the bill has been seized in execution; in such case (1) his executor, or (2) administrator, or (3) trustee in bankruptcy, or (4) curator ad interim or administrator, or (5) the sheriff or other proper officer, may sue upon the bill in his own name though in his representative capacity. By R. S. C. 1883, Ord. XVI. r. 1, subject to costs, "all persons may be joined as plaintiffs in whom the right to relief claimed is alleged to exist, whether jointly, severally or in the alternative" and (Id. r. 11) no cause vet this was not in an action on (q) Stones v. Butt, 2 C. & M. supra. (8) Coleman v. Bredman, 7 C. B. 871; but see Doe d. Vine v. Figgins, 3 Taunt. 440 (t) Walker v. Thellusson, 1 D., N. S. 578. (u) Aleinous v. Nigreu, 4 E. & B. 217. (x) 33 & 34 Vict. c. 23. (y) Ord. XVI. rr. 16, 20, 21. (z) Id. rr. 17, 20. (a) Id. r. 16, and 45 & 46 Vict. c. 75, s. 1 (2). or matter is to be defeated by reason of misjoinder or nonjoinder of parties, the Court having full power to amend on terms (Id. r. 11), either on summons before trial or at trial, in a summary manner (Id. r. 12) (b). CHAPTER XXVI. Corporations aggregate must sue and be sued in their Corporations corporate name, since the corporation is in law a different aggregate. entity from the individuals composing it (c). Companies are sometimes empowered to sue and be sued Public officer by their public officer (d). Official liquidators may bring or defend any action in the Liquidators. name or on behalf of the company with the sanction of the Court (e). Voluntary liquidators may do so without such sanction (f). Partnerships and firms not incorporated are now permitted Partnerships to sue in the name of the partnership or firm. But the and firms. defendant can obtain the names of the members at the time when the cause of action accrued, by an application (g). Prima facie any person may be sued, and outlaws, aliens wнO MAY BE whose nation is at war with the Queen, and felons are not SUED. exempt from this liability though deprived of the right to Outlaws, aliens, felons sue. Prior to 33 & 34 Vict. c. 23, however, the conviction of a felon worked a forfeiture of his property, and there was no object in suing him. That act abolished forfeiture of property for felony, and at the same time provided for its custody and control by a representative during sentence, and gave a right to sue that representative. Though an infant may be sued and will, under certain Infant circumstances (h), be held liable on his contracts, yet this cannot be liability does not extend to bills of exchange (i). (b) As to County Courts, see C. C. Rules, 1889, Ord. III. r. 1, and Ord. XIV. (c) In re Hodges, L. R., 8 Ch. Ap. 204; Pilbrow v. Pilbrow's Atmospheric Ry. Co., 3 C. B. 730. R. S. C. 1883, Ord. IX. r. 8, Comp. Act, 1862, s. 62. (d) As to these companies, see Lindley, L.J., on Company Law, 5th ed., pp. 265, 561. McDowell v. Doyle, 7 Ir. Com. Law Rep. 598. (e) Companies Act, 1862, s. 95. (f) Id., s. 133 (7), Lindley, L.J., Company Law, 5th ed., (g) Ord. XVI. r. 14, R. S. C. (h) See capacity of parties, ante, p. 65. (i) În Belfast Bank v. Doherty, ante, p. 67, note (k), O'Brien and Fitzgerald, JJ., thought it might be a material allegation to the defence to aver that the original bill was not for necessaries. Bateman v. Kingston, 6 L. R. (Ir.), 328, Lawson, J., while In sued on bill. CHAPTER JOINDER OF A lunatic may be sued. Service of the writ on his committee or on the person with whom he resides, or under whose care he is, will be sufficient, unless the Court or judge otherwise orders (j). A lunatic appears personally or by attorney, but defends by his committee or guardian ad litem, and the plaintiff may, if necessary, apply to have the guardian appointed (k). Since January 1, 1883, a married woman may be sued as if she were a feme sole, upon contracts in respect of and to the extent of her separate estate, without joinder of her husband as defendant (1). And when the person who would otherwise be the defendant is (1) dead, leaving a will, or (2) intestate, or (3) convicted of felony, in such case (1) his executor or (2) administrator, or (3) curator ad interim, or administrator, may be sued in his own name, but in his representative capacity. By R. S. C. 1883, Ord. XVI. r. 4, all persons may be DEFENDANTS. joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and judgment given against such one or more of the defendants as may be found liable accordingly, and without amendment. But a substantial, not a mere technical, satisfaction of the debt by any one will discharge all subsequent parties (m). By r. 5 of the same Order, it is not necessary that each defendant should be interested as to all the relief prayed for; and by r. 6, the plaintiff may, at his option, join as parties to the same action all or any of the parties severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory note; while r. 7 provides for joinder of several defendants holding void a bill given for a (j) Ord. IX. r. 5. (k) Dan. Ch. Pr. (1) Ord. XVI. r. 16; 45 & 46 Vict. c. 76, s. 1 (2). See further, Id. (3), (4), and Capacity of Parties, ante, p. 75. And as to proceedings under Ord. XIV., see Ortner v. Fitzgibbon, 50 L. J., Ch. 17; Durrant v. Ricketts, L. R., 8 Q. B. D. 178; Gunston v. Maynard, L. T., June 9, 1883, p. 102. (m) See post, pp.446,448; Windham v. Wither, 1 Stra. 515; Ex parte Wildman, 2 Ves. sen. p. 115. |