Page images
PDF
EPUB

expressed to be, or in legal effect is, payable to

8 22. bearer on demand, or to borrow, owe, or take up any

sum or sums of money on such bill or note.1 Exception.-Banker or banking company lawfully issuing such bills or notes on May 6, 1844, but subject to certain conditions.

Previous statutes define the bankers who in 1844 were lawfully issuing such bills or notes. The result seems to be that in London and within a circle of three miles round, the Bank of England has a monopoly; that beyond three and within 65 miles, the monopoly is shared with banks of less than ten persons established before 1844; that beyond the 65-mile limit

, the monopoly is shared with all banks established before 1844 who have not since lost their privileges. The statutes now in force affecting bills by conferring exclusive banking privileges on the Bank England are: 39 & 40 Geo. 3, c. 28, § 15; 7 Geo. 4, c. 46; 9 Geo. 4, c. 23; 3 & 4 Will. 4, c. 83, & 2; 3 & 4 Will. 4, c. 98; 7 & 8 Vict. c. 32; 8 & 9 Vict. c. 76, $ 5; 17 & 18 Vict. c. 83, $8 11 and 12; 25 & 26 Vict. c. 89, Sched. III. Their provisions are inconsistent, but the later Acts do not expressly repeal the earlier ones, so the whole must be construed together. See sect. 97 (3), post, p. 283, saving the privileges of the Bank of England. 23. No person is liable as drawer, indorser, or Signature

essential to acceptor of a bill who has not signed it as such ; 4 liability. Provided that (1) Where a person signs a bill in a trade or

assumed name, he is liable thereon as if he

had signed it in his own name. (2) The signature of the name of a firm is

4

2 Id.

17 & 8 Vict. c. 32, SS 11 and 28, as explained by 17 & 18 Vict. c. 83, $ 11. See post, pp. 335 and 337.

3 Lindley, 3rd ed. p. 191, n., and pp. 1615–1617.

4 Cf. Fenn v. Harrison (1790), 3 T. R. at p. 761 ; Beckham v. Drake (1841), 9 M. & W. at p. 92; Re Adansonia Co. (1874), 43 L. J. Ch. at p. 734, per James, L.J. See note, post, p. 67.

ó Cf. Lindus v. Bradwell (1848), 5 C. B. at p. 591 ; Trueman v. Loder (1840), 11 A. & E. at p. 594. By sect. 2, person includes a body of persons, whether incorporated or not. C.

F

$ 23.

Signature essential to liability.

equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm."

ILLUSTRATIONS. 1. A., who is agent for X., draws a bill in his own name. The payee knows that A. is only an agent. A. alone is liable as drawer of this bill. X. is not.2

2. B. and X. are jointly indebted to C. B. alone makes a note in favour of C. for the amount of the debt. B. alone is liable on the note. 3

3. A. draws a bill, signing it “ J. A., agent.” A. alone is liable as drawer. His principal is not.*

4. D. is the holder of a bill indorsed in blank by C. D. converts C.'s indorsement in blank into a special indorsement to E., and transfers the bill to the latter. D. is not liable as indorser.5

6. X., a partner in a firm who trade as “ John Brown,” makes a note for 1001. in respect of a partnership transaction, signing it as “ Brown & Co.” He has no authority from his partners to vary the firm style. The firm is not liable on this note, though X. individually is bound by it.

6. A. is a partner in the firm of " B. & Co." A., in respect of a partnership transaction, draws a bill in his individual name on "B. & Co.” It is refused acceptance. A. alone is liable as drawer; his co-partners are not.7

7. John Smith carries on business under the name of “ John Brown,” or “Brown & Co.” or “ The London Iron Company.” John Smith is liable on a bill drawn, indorsed, or accepted by him § 23. in any of these names.'

1 Lindley on Partnership, 3rd ed. pp. 355-357; Pooley v. Driver (1876), 5 Ch. D. 458 ; Gurney v. Evans (1858), 27 L. J. Ex. 166.

2 Cf. Leadbitter v. Farrow (1816), 5 M. & S. at p. 350 ; Ex parte Rayner (1868), 17 W. R. 64. Conversely a clerk who draws a bill in the name of a firm whose affairs he is winding up, two of the partners being dead, is not liable on the bill : Wilson v. Barthrop (1837), 2 M. & W. 863.

3 Siffkin v. Walker (1809), 2 Camp. 308.
* Pentz v. Stanton (1833), 10 Wend. 271, New York.
5 Vincent v. Horlock (1008), 1 Camp. 442.

6 Paith v. Richmond (1840), 11 A. & E. 339 ; Kirk v. Blurton (1841), 9 M. & W. 284 ; Lindley, 5th ed. p. 185. If X.'s partners had authorized the change of style, the altered style would have been pro hac vice the firm style, and binding on them. The firm, too, is bound if the variation in style be immaterial and unintentional: Forbes v. Marshall (1855), 11 Exch. 166. As to an accidental misspelling, see Leonard v. Wilson (1834), 2 Cr. & M. 589 ; Kirk v. Blurton (1841), 9 M. & W. at p. 289. And if there be not a distinct firm style, it seems a partner may for firm purposes sign the individual names of his co-partners : Norton v. Seymour (1847), 16 L. J. C. P. 100.

i Nicholson v. Ricketts (1860), 29 L. J. Q. B. at p. 65 ; Re Adansonia Co. (1874), 43 L. J. Ch. 732, firm composed of four firms.

Signature 8. A principal trades and carries on a business in the name of essential to one of his agents (a clerk). He is liable on a bill accepted by the liability. clerk in his own name in respect of that business, although the clerk in accepting it acted contrary to his private instructions.? So, too, a firm may trade under its own name in one place, and under the name of one of the partners in another place. His name then becomes the firm name.3

9. J. B. carries on business in his own name, but having a dormant partner. If he accepts a bill on his private account, the dormant partner is not liable, but it lies on the dormant partner to show that the bill was not a firm bill."

By sect. 2, "person ” includes a body of persons whether incorporated or not. An exception to the rule laid down in this section is created by sect. 42 of the Companies Act, 1862, post, p. 340, which is saved by sect. 97 (3). Any officer of the company who varies the style of the company is personally liable under that section.

By sect. 91, post, p. 274, the signature may be written by the hand of an agent, but it must be the principal's signature, not the agent's. The seal of a corporation may be equivalent to a signature, sect. 91 (2), post, p. 278.

Bills and notes form an exception to the ordinary rule that when a contract is made by an agent in his own name, evidence is admissible to charge the undisclosed principal, though not to discharge the agent. A person who has not signed, though not liable on the instrument, may of course be liable on the consideration : e.g. X. would be so liable in Illustration 2. The distinction is this: In the one case the liability is transferable; in the other it is not; also the ORUS probandi is shifted.

The signature of a firm is deemed to be the signature Partners. of all persons who are partners in the firın, whether working, dormant, or secret, or who, by holding them

| Cf. Wilde v. Keep (1834), 6 C. & P. 235; Porman v. Jacob (1815), 1 Stark. 47 ; Lindus v. Bradwell (1848), 5 C. B. at p. 591 ; and Trueman v. Loder (1840), 11 A. & E. at p. 594.

· Edmunds v. Bushell (1865), L. R. 1 Q. B. 97 ; cf. Conro v. Port Henry Iron Co. (1851), 12 Barb. 27, New York.

3 Cf. Alliance Bank v. Kearsley (1871), L. R. 6 C. P. at p. 438, Willes, J.

4 Yorkshire Banking Co. v. Beatson (1880), 5 C. P. D. 109, C. A., discussing the previous cases.

- Pooley v. Driver (1876), 5 Ch. D. 458 ; Partnership Act, 1890, s. 4; Pollock on Partnership, 5th ed. p. 20.

§ 23.

selves out as partners, are liable as such to third parties.? Thus :

X. is a working partner in the firm of “B. & Co." He retires from the firm, but gives no notice of his retirement. He is liable on a bill accepted by the firm subsequent to his retirement.?

Where the name of a firm, and the name of one of the partners in it is the same, and that partner draws, indorses, or accepts a bill in the common name, the signature is primâ facie deemed to be the signature of the firm : but the presumption may be rebutted by showing that the bill was not given for partnership purposes or under the authority of the firm.

It was formerly thought that where two distinct firms, having one or more partners in common, carried on business under the same name, each firm was liable on the acceptances of the other to a holder for value without notice. 4 But since the case of Yorkshire Banking Co. v. Beatson, it seems clear that this hard rule is no longer law.

The case of a non-trading firm illustrates the distinction between capacity and authority. The partners in a nontrading firm have full capacity to bind themselves by indorsing or accepting bills; but though the capacity is present, there is no presumption that the partner who signs the firm name, or the names of his co-partners, has any authority to bind his co-partners by so doing. The partner who signs is, of course, bound, and so are his co-partners if they have authorized his act, or if they subsequently ratify it, but not otherwise. The law on this point may, perhaps, be summed

A partner in a trading firm has primâ facie authority to bind the firm by drawing, indorsing, or accepting bills in the firm name for partnership purposes; and if the bill get into the hands of a holder in due course, the presumption of authority becomes absolute, and it is immaterial whether it were given for partnership purposes or not. Thus:

up as follows:

Trading firm.

i Gurney v. Evans (1858), 27 L. J. Ex. 166 ; Partnership Act, 1890, s. 14 ; Pollock, p. 50; Lindley, 5th ed. p. 181.

2 Pollock, p. 52 ; Lindley, 5th ed. p. 213.

3 Yorkshire Banking Co. v. Beatson (1880), 5 C. P. D. 109, C. A. ; and Lindley, 5th ed. p. 182.

* See Lindley, 3rd ed. p. 387.

5 Bank of Australasia v. Breillat (1847), 6 Moore, P. C. 152, at p. 194 ; "l'iseman v. Easton (1863), 8 L. T. N. S. 637.

1. X., a partner in a trading firm, makes a note in the

§ 23. firm's name, payable to C., and gives it to him in payment of a private debt. It lies on C. to show that X. had authority from his co-partners so to do.

2. A. draws two bills on a firm in respect of one and the same debt. By mistake both bills are accepted. The bills are negotiated to holders in due course. The firm is liable on both bills. 2

3. A partner accepts in the firm name a bill drawn on the firm in respect of a debt partly due from the firm and partly due from himself alone. Fraud is negatived, but the holder knows the facts. The pro tanto liability of the firm on the instrument is doubtful.3

In case 3, the safe plan is to sue on the consideration. This rule and the next are merely deductions from the general rule that a partner has implied authority to do any act necessarily incidental to the proper conduct of the partnership business, and that there the presumption of authority ends.

There is a quasi exception to the general rule where the name of the firm is the same as the name of one of the partners in it.

In that case an acceptance in the common name, written by the partner whose name it is, may be shown to be his individual acceptance and not binding on the firm.4

A partner in a non-trading partnership has primâ facie Non-trading no authority to render his co-partners liable by signing bills firm. in the partnership name. The holder must show authority, actual or ostensible. 5

Partnerships, such as professional partnerships (e.g., solicitors),o mining partnerships, agricultural partnerships, 8 and commission agencies,' have been held non-trading: but banking is a trading partnership.10

In America, physicians, tavern-keepers, tunnel-workers,

1 Cf. Levieson v. Lane (1862), 32 L. J. C. P. 10.
2 Davison v. Robertson (1815), 3 Dow, 218, H. L.
3 EUston v. Deacon (1866), L. R. 2 C. P. at p. 21.
* Yorkshire Banking Co. v. Beutson (1880), 5 C. P. D. 109, C. A.

5 Lindley, 5th ed. p. 130 ; Dickinson v. Valpy (1829), 10 B. & C. at p. 137 ; Thicknesse v. Bromilow (1832), 2 Cr. & J. 425.

6 Garland v. Jacomb (1873), L. R. 8 Ex. at p. 219. 7 Rickettx v. Bennett (1847), 4 C. B. at p. 699. 8 Kimbro v. Bullit (1859), 20 Howard, 256. 9 Yates v. Dalton (1858), 28 L. J. Ex. 69. 10 Bank of Australasia v. Breillat (1847), 6 Moore, P. C. 152, at p. 194.

« PreviousContinue »