§ 91. own hand, but it is sufficient if his signature is written thereon by some other person by or under Signature by his authority. ILLUSTRATIONS. It is 1. Bill payable to C.'s order, and indorsed in his name. proved that C.'s wife had authority to indorse bills for him, and that in this case C.'s indorsement was written by his daughter in the presence and by the direction of his wife. This is sufficient.1 2. Bill addressed to B., and accepted in his name. It is shown that X., who wrote the acceptance, is in the habit of accepting bills in B.'s name, and that B. is aware of it, and duly honours such bills. This is evidence from which an authority to X. to accept bills for B. may be implied.2 3. C., the holder of a bill payable to order, transfers it for value to D. without indorsing it. This is not an authority to D. to indorse it in C.'s name.3 4. It is shown that X. has an express authority to draw bills in A.'s name. This of itself is not sufficient to show that he has authority to indorse bills for A.1 5. An express authority to an agent to receive payment from B., by drawing on him, does not authorize the agent to draw a bill payable to his own order." 6. An authority to a partner in a non-trading firm to draw cheques does not authorize drawing post-dated cheques, which for most purposes are equivalent to bills payable after date." See further sect. 23, signature in assumed name, or firm name; sect. 24, forged or unauthorised signature; sect. 25, procuration signature; sect. 26, signature by agent or representative. The cases above cited seem to show that it is immaterial by what hand the signature is attached if there be authority to sign, express or implied; but that where the authority is express it must be strictly construed. In Lord v. Hall (İllust. 1)7 Maule, J., says: "The question is whether upon the evidence the wife was not acting in the strict exercise of the authority conferred on her by her husband in doing what she did, namely, in requesting a third person to do it in her presence. There was evidence 1 Lord v. Hall (1849), 8 C. B. 627; cf. Lindus v. Bradwell (1848), 5 C. B. at p. 591. 2 Cf. Morris v. Bethell (1869), L. R. 5 C. P. at p. 51. 3 Harrop v. Fisher (1861), 30 L. J. C. P. 283. 4 Cf. Prescott v. Flinn (1832), 9 Bing. at p. 22; and Indian Act, s. 27. 5 Hogarth v. Wherley (1875), L. R. 10 C. P. 630; and Indian Act, s. 27. 6 Forster v. Mackreth (1867), L. R. 2 Ex. 163 (firm of solicitors). 7 Lord v. Hall (1849), 8 C. B. at p. 630. agent. § 91. What a sufficient signature. that the wife had the general management of her husband's of Ex parte Sutton (2 Cox, Ch. C. 84), which may be worth "Signature" may perhaps be defined as the writing of a person's name on a bill or note in order to authenticate and give effect to some contract thereon. A pencil signature to a bill has been held sufficient;1 and it has been suggested that a lithographed or stamped signature might be sufficient. A signature made by another person, but attested by mark, is sufficient.3 Where a note ran, "I, William Smith, promise to pay, &c." instead of "I promise to pay," with the signature appended, it was held sufficiently signed. Where a statute requires an ordinary contract or document to be signed, a mere mark, or initials, or a stamp,' if intended as signatures, are sufficient; and it is immaterial in what part of the document the name is introduced, provided it govern the whole. But legal analogies must be applied with caution to bills which are the creation of custom, and where it is of the utmost importance that a clear title should appear on the face of the instrument. In America the rule is lax. A person who signed by initials was held liable as indorser of a cheque, and the same was held as to a person who indorsed by mark, viz., by writing the figures, 1, 2, 3.9 By German 1 Geary v. Physic (1826), 5 B. & C. 234. 2 See Ex parte Birmingham Bank (1868), L. R. 3 Ch. Ap. at pp. 653, 654. 3 George v. Surrey (1830), M. & M. 516. ↑ Taylor v. Dobbins (1719), 1 Stra. 399; cf. Ruff v. Webb (1794), 1 Ep. 129. 5 Baker v. Dening (1838), 8 A. & E. 94. 6 Caton v. Caton (1867), L. R. 2 H. L. 143. 7 Saunderson v. Jackson (1800), 2 B. & P. 238. 8 Merchants' Bank v. Spicer (1831), 6 Wend. 443. 9 Brown v. Butchers' Bank (1844), 6 Hill. 443. Exchange Law, Art. 94, signature by mark is insufficient § 91. unless made before a notary. The object of a signature is to authenticate a document. Where, then, a person is induced by fraud to sign a bill or note under the belief that he is signing a wholly different instrument, his signature is null and void, provided that in so signing he acted without negligence. Thus : 1. D., an old man with enfeebled sight, is induced to sign his name on the back of a bill, by being told that it is a railway guarantee which he had promised to sign. The bill is negotiated to a holder in due course. D. is not liable as an indorser.' 2. B. is induced by fraud to sign a negotiable note as maker, believing it to be a non-negotiable note for a less sum. Negligence is negatived. If the note is negotiated to a holder in due course, he (probably) cannot recover from B.2 In Foster v. Mackinnon (Illustration 1), the only English case on the point, Byles, J., says: "The defendant, according to the finding of the jury, never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature. It was not his design, and, if he were guilty of no negligence, it was not even his fault that the instrument turned out to be a bill of exchange. It was as if he had written his name on a sheet of paper for the purpose of franking a letter, or in a lady's album, or on an order for admission to the Temple Church, or on the fly-leaf of a book, and there had already been without his knowledge a bill of exchange or promissory note payable to order inscribed on the other side of the paper. To make the case clearer, suppose the bill or note on the other side of the paper in each of these cases to be written at a time subsequent to the signature, then the fraudulent misapplication of that genuine signature to a different purpose would have been a counterfeit alteration of a writing with intent to defraud, and would therefore have amounted to a forgery. In that case the signer would not have been bound by his signature, for two reasons-first, that he never in fact signed the writing declared on, and, secondly, that he never intended to sign any such contract." 3 Frauds of this nature are more frequent in the United States than in England, owing to 1 Foster v. Mackinnon (1869), L. R. 4 C. P. 704. 2 Griffiths v. Kellog (1876), 20 Amer. R. 48. 3 Foster v. Mackinnon (1869), L. R. 4 C. P. 704, see at p. 712. Signature obtained by fraud as to nature of document. § 91. Seal of cor poration as signature. Signature of corporation or company. the absence of stamp laws. A man's signature is obtained for some pretended purpose, and then a promissory note is over-written. (2) In the case of a corporation, where, by this Act, any instrument or writing is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal. But nothing in this section shall be construed as requiring the bill or note of a corporation to be under seal. Before this enactment it was very doubtful whether a bill or note issued by a corporation under its seal constituted a negotiable instrument. It was never doubted that a corporation (otherwise competent) could be bound by a bill or note duly signed on its behalf; and this was one of the recognised exceptions to the rule that a corporation can only contract under seal. It had further been held that a note made by the directors of a company, which was binding on them personally, was not affected by the addition of the corporate seal. In New York it is held that missory note under seal is not negotiable unless issued by government. pro The usual form of signature for a corporation is a procuration signature. As regards companies under the Companies Acts, 1862 to 1879, the form in which a bill or note must be drawn, made, indorsed, or accepted so as to bind the company is regulated by s. 47 of the Companies Act, 1862. See that section set out in Appendix, post, p. 341, and cases thereon. In order to determine whether a company or other corporation is liable on a bill, three questions. must be asked: 1. Has the company the requisite capacity to bind itself by a bill? 2. Is the signature on the bill sufficient in form to bind the company? 3. Was the signture placed there by a person having authority to sign bills for the company? It is immaterial that a person who acts 1 Crouch v. Crédit Foncier (1873), L. R. 8 Q. B. at pp. 382, 383. 2 Grant on Corporations, p. 61. 3 Dutton v. Marsh (1871). L. R. 6 Q. B. 361. 4 Merritt v. Cole (1876), 9 Hun. R. 98. within the scope of his authority in signing bills exceeds or contravenes private instructions. See further, sect. 22, and notes thereon, ante, p. 60. § 91. When a company, under the Companies Acts, is in Liquidators. liquidation, and two or more liquidators are appointed, a bill must be signed by at least two liquidators in order to bind the company.2 of time. 92. Where, by this Act, the time limited for Computation doing any act or thing is less than three days, in reckoning time, non-business days are excluded. "Non-business days" for the purposes of this Act mean (a) Sunday, Good Friday, Christmas Day : (c) A day appointed by Royal proclamation as Any other day is a business day. See sect. 42 as to leaving bills for acceptance; sect. 49 (12) as to notice of dishonour, and sect. 67 (2) as to presentment to the acceptor for honour. See the Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), as amended by the Act of 1875 (38 Vict. c. 13), in the Appendix, post, p. 346. equivalent to 93. For the purposes of this Act, where a bill When noting or note is required to be protested within a speci- protest. fied time or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the 1 Re Land Credit Co. (1869), L. R. 4 Ch. 460. As to the powers of de facto directors, cf. Mahony v. East Holyford Mining Co. (1875), L. R. 7 H. L. 869. As to the authority of a manager in a foreign country, see Re Cunningham & Co., Limited (1887), 36 Ch. D. 532. 2 Ex parte Agra Bank (1871), L. R. 6 Ch. 206. |