Smith v Commercial Banking Co of Sydney Ltd [1910] HCA 72

High Court of Australia|1910-07-01|Before: Isaacs JJ, Per O'Connor J, Isaacs J, O'Connor J, Per Isaacs J

E COMMERCIAL BANKING CO. OF SYDNEY LTD. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

ker and customer - Bill payable to order on demand - Forged indorsement - 'Payment in good faith and in the ordinary course of business - Negligence of

banker - Liability of banker - Bills of Exchange Act 1887 (N.S. W.), (51 Vict., No. 2), sec. 60 - Bills of Bxchange Act 1909, (No. 27 of 1909), sec. 65.

'The appellant, who was about to proceed from England to Sydney, obtained 'a draft for £30 issued in two parts, and payable to his order. He retained the first of exchange in his possession, and posted the second of exchange to his own address at the G.P.O., Sydney. On arrival at Sydney he found that the second of exchange had been delivered by the Post Office to some other _ Ferson, to whom, on presenting the first of exchange at the bank, he was informed that the £30 had already been paid by the bank. The appellant sued the bank as acceptors of the draft. The bank denied acceptance, and claimed the benefit of sec. 60 of the Bills of xchange Act 1887, by which a banker is protected where he pays in good faith and in the ordinary course of ; business, on a forged indorsement, in the case of a bill drawn on the banker and payable to order on demand.

It appeared at the trial that the thief had presented the draft at the bank, __ representing himself to be the payee, and that in order to prove his identity

he was asked to write his signature for the purpose of comparison with a specimen signature of the payee sent to the bank by the drawers. 'The thief accordingly wrote his name twice on the back of the draft, and an officer of the bank then wrote his name "John Bull" on the draft as authority for its payment, and it was paid accordingly. The draft when produced in Court bore on its face the name of the bank, impressed with a circular rubber stamp, over the signature of the-drawers, with the word " paid" within the circle,

Held, that sec. 60 protects a banker only when a bill has been negotiated by indorsement before it comes to him for payment, and that the signature of the thief on the back of the draft did not relieve the bank from its liability to

Per O'Connor J. and Isaacs J. - Negligence, per se, does not disentitle the bank to the protection of sec, 60.

But, held, also, that neither the signature of the bank's officer on the draft, nor the bank's name impressed on the face of the draft, constituted an acceptance by the bank, so as to comply with the statutory requirements of sec. 17 of the Bills of Bachange Act 1887, and sec. 244 of the Companies Act 1899,

Per Grifith C.J. and O'Connor J. - The evidence of acceptance would have been sufficient at ccmmon law,

Per Isaacs J. - (1) There was no evidence of acceptance at, common law ; (2) Under sec, 244 of the Companies Act the intention to make the signature that of the company must be found upon the face of the document.

Decision of the Supreme Court: Smith v. Commercial Banking Company of Sydney, 10 S.R. (N.S.W.), 386; 27 W.N. (N.S.W.), 82, affirmed, but on different grounds.

AppEAL by the plaintiff, by special leave, from a decision of the Full Court, setting aside a verdict for the plaintiff, and entering a verdict for the defendants.

The facts are stated in the judgment of Griffith C.J.

Perry, for the appellant. First, the signature John Bull was evidence of acceptance by the bank. By sec. 17 of the Bills of Exchange Act, 51 Vict. No. 2, the signature of the drawer is evidence of acceptance.

Sec. 244 of the Companies Act 1899 provides that a bill shall be deemed to have been accepted (a) in the name of the company by any person acting under the authority of the company ; or (b) by or on behalf or on account of the company by any person

g under the authority of the company. Under (b) the H.C. or A. e would not be in the name of the company, and it need ot

i appear in the document that it was signed on behalf of the Sun 2S mpany. The signature by Bull was a signature on behalf of Gos oran the bank by a person acting under its authority: O'Kell v. Baskixe Co. Charles (1); Lindus v. Bradwell (2). Marking a cheque may ee ee mount to an acceptance: Robson v. Bennett (3). The stamp of ~_ the bank on the bill is primd facie evidence of acceptance. [He

also referred to Paget on Banking, 2nd ed., p. 93.]

Secondly, the bank cannot claim the protection of sec. 60 of the

Bills of Exchange Act. The indorsement protected by that

'section is limited to an indorsement which is made for the pur-

pose of negotiation. The bank did not pay the thief because of

'the indorsement, but because they thought he was the payee, and

they asked for his signature as evidence of his identity. The

learned Judge at the trial found that the signature was put on

the bill for this purpose. Such an indorsement does not come

within sec. 60: Paget on Banking, 2nd ed., p. 46; National Bank

of South Africa v. Paterson, referred to in vol. 18 of the New

Wales Bankers' Journal, p. 349. [He also referred to

'Hart on Banking, 1st ed., p. 304; Keene v. Beard (4).]

Thirdly, the bill was not paid in the ordinary course of busi-

which must be shown to bring the case within sec. 60. That

t banker would follow in his business. The ordinary specimen gnature was practically disregarded.

Know KC. and Russell, for the respondents. Evidence of ptance is a condition precedent to the defendants' liability : yles on Bills, 15th ed., p. 251. See. 17 (2) (a) of the Bills of ange Act provides that the signature of the drawee is suffi- to constitute an acceptance. Sec. 23 negatives this, where is not signed as such, that is with the intention of accepting. '84 LéT., 822, (4) 8 C.B.N.S., 372.

Q) 5UB., 583. (5) 6 Bing., 677. (3) 2Taunt., 388, (6) 2Camp., 485.

Here the signature of the bank appears nowhere on the bill. The drawee's name only appears on the bill as part of a statement that he has paid the bill. Bull's signature is not the signature of the drawee, and he does not sign per proc. A company cannot be made liable as acceptor under sec. 244 of the Companies Act, except when its name appears on the bill, as this would conflict with secs. 67 and 68 of that Act: Atkin v. Wardle (1); Lindley on Companies, 6th ed., p. 278, The bill must show on its face an acceptance by the drawee. The signature John Bull is not con- nected with the name of the company, and he wrote his name on this bill alio intwitu. The stamp on the bill is a mere memor- andum of payment. "Paid" cannot mean "I promise to pay." The only proof of acceptance is the payment. The plaintiff cannot adopt the payment to prove acceptance, and then say there has been no payment. The plaintiff says, you have paid the bill, therefore you have accepted it, therefore you are liable to me, therefore you have not paid it. An acceptor need not sign with his own hand, but "his signature" must be written on the bill: sec. 91. In the case of a bill payable on demand, the bank cannot postpone payment for the purpose of making inquiries as to the identity of the payee. They must either pay the bill or dishonour it. The intention of sec. 60 was to put the bank in the same position with regard to cheques drawn to order as with regard to open cheques: Hare v. Copland (2). The section requires a signa- ture, not a signature which is an indorsement: Charles v. Black- well (3). If the thief in this ease had endorsed the cheque in the bank, and then gone outside and given it to somebody else to cash, admittedly the bank would have been protected by sec. 60. But it is said that, because he wrote his name on it when he demanded payment, the section does not apply. It is a contra- diction in terms to say that a forger could ever indorse animo indorsandi. The whole object of see. 60, so far as the banker is concerned, was to make cheques drawn to order pass by delivery. Unless signature is equivalent to indorsement, the banker gets no protection.

(1) 5 T.LR., 734. (2) 13 Ir. Q.L., 426. (3) 20.P.D., 151.

RIFFITH C.J. The appellant, who was about to sail from H. ©. oF A.

land to Sydney, obtained a draft upon the respondents for a, 0, issued in two parts and payable to his order. He retained - gynrw

first of exchange in his possession, and posted the second of Go useeoraL inge to his own address at the G.P.O., Sydney. On arrival Bayxtxe Co.

found that it had been delivered to some other person, to ie eb

whom, on presenting the first of exchange at the bank, he was nes 'informed that the money had been paid. He then brought this action in a District Court against the respondents as acceptors of e draft, adding a claim for money had and received, but unfortunately did not add a claim for conversion of the draft. he had done so it is difficult to see what answer could have en made to his claim, except under sec. 60 of the Bills o echange Act of New South Wales, to which I will afterwards . The defendants denied acceptance, and claimed the benefit sec. 60. It appeared at the trial that the thief presented the at the bank, representing himself to be the payee, that he invited to prove his identity, and for that purpose to write s signature to be compared with a specimen signature of the payee which had 'been sent to the bank by the drawers. He cordingly wrote his name on the back of the draft, but, the ature being quite unlike the genuine one, he was invited to write it again. His second attempt was more like the genuine 'signature, and the proper oflicer of the bank, being satisfied, his name " John Bull" on the face of the draft, which was i. authority to the cashier to pay it, and it was paid accordingly. The draft, when produced in Court, bore on its face the name of i bank, evidently impressed with a circular rubber stamp, over signature of the drawers, with the word "Paid " within the e, also another rubber stamp with the word " Paid" and a e, apparently the date of payment, and also the word " Paid" ed by perforations. The signatures of the thief were not n across the back of the draft, but parallel with the gitudinal edges. 'The learned District Court Judge found that e draft had been accepted by the bank, and that they had not brought themselves within the provisions of sec. 60. He also specially (upon ample evidence) that the signatures of the on the back of the draft were written for the purposes of

identification and receipt, and were not indorsements, except in the literal sense of being writings placed on the back of a docu- ment. He also found that the signatures were palpable forgeries,

plain to anyone exercising due care, and that there was gross

negligence on the part of the bank in the acceptance of the thief as the real payee.

On appeal to the Supreme Court the judgment was reversed. The learned Judges thought that there was sufficient evidence of acceptance, but that the bill was indorsed, and that the defendants were entitled to the benefit of sec. 60 of the Bills of Bachange Act.

That section provides that : - " When a bill payable to order on demand is drawn on a banker, and the banker on whom it is drawn pays the bill in good faith and in the ordinary course of

business, it is not incumbent on the banker to show that the

indorsement of the payee or any subsequent indorsement was made by or under the authority of the person whose indorsement it purports to be, and the banker is deemed to have paid the bill in due course although such indorsement has been forged or made without authority and such indorsement shall be deemed to give as valid an authority to the banker to pay the bill as though it were genuine and made with due authority."

That Act has now been repealed, and its place is taken by the (Commonwealth) Bills of Exchange Act 1909. As the questions raised in this case are of general importance I will refer to the several relevant sections of the Act by their numbers in the Commonwealth Act. Sec. 60 of the New South Wales Act stands as the first part of sec. 65.

The only decided case on the construction of this section to which we were referred was a case of National Bank of South Africa y. Paterson before Chief Justice Sir J. Rose Innes in the Supreme Court of the Transvaal Colony, of which a report

appears in the Journal of the New South Wales Institute of -

Bankers, Vol. 18, Pt. 9, of 30th September 1909. That learned Judge was of opinion that the section protects the banker only when the bill has been negotiated by indorsement before it comes to him for payment. In my judgment this is the true construction. The existence of an indorsement is assumed by

rds "the indorsement," which, as applied to the case of a H.C. or A. sayable to order or on demand, import that it has become 19! ble to bearer, which can only be by indorsement (secs. 36 sae 39 (1)). A bill expressed, as this was, to be payable to the 'idee intiff's order was payable to him or his order at his option Bankine Co, 13 (5)). Upon the facts found by the learned Judge it is ee pie that both the bank and the thief treated the draft as pay- to the payee, and not as payable to bearer. In my opinion ming in Six John Paget's book on this point is conclu- The result is that the draft has not been paid, and is still paid draft in the hands of the appellant. But he cannot sue it unless he can establish a contract between himself and respondents.

he respondents therefore rely on the defence of non-acceptance. ais depends entirely upon the Statute. At common law the

nee of acceptance would, in my opinion, have been com-

e Statute declares (sec. 22 (1) ) that the acceptance of a the signification by the drawee of his assent to the order e drawer. If there were no other relevant provisions it be clear that there could not be better proof of the assent drawee to the order of the drawer than the fact that he obeyed it by payment. The same section provides (22 (2) ) an acceptance is invalid unless it is written on the bill and d by the drawee, and that the mere signature of the drawee additional words is sufficient. The appellant's counsel that the signature of the bank's officer, " John Bull," sa sufficient compliance with this provision, and relied upon of the New South Wales Companies Act (No. 40 of ) which is as follows : -

promissory note or bill of exchange shall be deemed to been made, drawn, accepted, or endorsed by any company ered under this Act, if made, drawn, accepted, or endorsed - "@i 'in the name of the company by any person acting under the authority of the company ; or

"(b) by or on behalf or on account of the company by any person acting under the authority of the company."

also referred to the observations of Jessel M.R. and Kelly _ You, x1, 46

H.C. of A. C.B. in the case of Okell v. Charles (1). I am unable to accept we this argument. I do not think that the signature "John Bull" can be regarded as the signature of the bank within the meaning of the Statute, although at common law it would have been abund- 20. ant evidence of acceptance. It was then contended thatthe bank's name impressed upon the face of the draft in the mamner already stated was a sufficient signature. It might in my opinion have been a sufficient signature if all other provisions of the Act were complied with. But sec. 26 provides that every contract on a bill, whether it be the drawer's, the acceptor's, or an indorser's, is _ incomplete and revocable until delivery of the instrument in order to give effect thereto. In the case of acceptance this implies delivery of the instrument completed by the signature of the acceptor. If it could be inferred from the evidence that the signature in question had been placed upon the draft before it was handed to the thief to be presented for payment, I think that this provision would be complied with. It was suggested that delivery to the thief would not enure for the benefit of the owner. In _ Chitty on Bills (11th ed.), it is said (p. 195): - * Presentment for acceptance should in general be made by the rightful holder. But it is said that, if a wrongful holder should present for acceptance, the drawee ought nevertheless to accept the bill, and may do so without risk; and that if he refuse, a valid protest for non- acceptance may be made, which will enure to the benefit of the party entitled to the bill," for which the learned author cites Pardessus. In my opinion this is good sense and good law. Then it was suggested that if the plaintiff adopted the present- ment of the bill by the thief for acceptance, he also adopted and ratified the whole transaction, including payment. Here there is an obvious fallacy. The acceptance of the mandate of the drawer necessarily precedes, in order of thought, the obedience to it, although they are practically contemporaneous, The assent was given on the faith of the drawer's signature, and the fraud of the thief was quite irrelevant to it. That fraud was only relevant to the subsequent payment. There is therefore no question of approbation and reprobation with regard to a single transaction. It was also suggested that drafts payable to order on demand

'never presented for acceptance. This argument also involves H. C. or A. vious fallacy. Itis not usual to present such drafts for formal ny ptance antecedently to the demand of payment, but theassent - gyuru

to the drawer's order, as already shown, must always be asked (9. tenon r and given before it is obeyed. Bankrxa Co. he only question, therefore, which is left for determination is oy th her there was any evidence upon which the learned District wt Judge could find that the bank's signature had been placed on the draft before it was handed to the thief to be presented payment. There is no direct evidence on the point, but the iden of proof was on the plaintiff. In the absence of any evidence I think that it might be inferred that that ature was put on the draft as a record both of the fact of ptance of the drawers' mandate and of obedience to it. As obedience it is incorrect and irrelevant. But I am unable to

any ground for a finding that that signature had been put

to obtain payment. For this reason, and this reason only, I am ntly compelled to the conclusion that the appeal must fail.

The Bills of Exchange Act of 1887 (N.S.W.) - which is in this respect in the same terms as the Commonwealth Act on the same ject - has enacted in definite terms the requirements necessary "acceptance," and the plaintiff must establish that the accept- e on which he relies fulfils those requirements. Sec. 17 defines tance of a bill as the signification by the drawee of his to the order of the drawer. The assent must be signified 1 the bill, and for that purpose the mere signature of the drawee rithout additional words is sufficient (sec. 17 (2) (a)). The eptance must be completed by delivery of the bill, that is to by transfer of possession, actual or constructive, from one to another (sec. 2). Finally sec. 21 (1) declares that every 2 on a bill, whether it be the drawer's, the acceptor's, or

an indorser's, is incomplete and revocable until delivery of the ument in order to give effect thereto.

The plaintiff was confronted at the outset with a difficulty in -

proving that the bank as drawee had signed the bill. In strict- ness a corporation can sign a document only by properly affixing its seal.

But in the case of companies registered under the New South Wales Companies Act 1899 there is a special provision in sec. 244 that notes or bills shall be deemed to have been made drawn and accepted or indorsed in the name of the company by any person acting under the authority of the company, or by, or on behalf, or on account of the company by any person acting under the authority of the company.

Several English decisions upon the corresponding section of the English Companies Act were cited during the argument. None of them deal with a state of facts analogous to that which has arisen in this case. But they all concur in this that compliance with the section must appear on the face of the document. In other words, whatever is necessary to constitute a signing by the company must appear on the interpretation of the bill itself. The word "accepted" is not on the bill, but the signature of John Bull, the proper officer of the bank to accept on its behalf, is written on the face of the bill and across the top of it. At the bottom of the bill the bank's official stamp has been placed across the signature of the makers. Inside that stamp is the word "paid." The same word has been impressed by another stamp alongside the first, and also by perforation on the top of the bill. Having regard merely to the signing by the bank, I am of opinion that sufficient evidence appears on the face of the bill. The stamp of the bank cancelling the makers' signature, and the signing by the officer deputed to accept bills, is certainly primd jucie evidence of a signing by the bank. But something more is required in proving signing necessary to signify acceptance of a bill.

It is in my opinion an essential requirement of the sections of the Bills of Hxchange Act which I have quoted that the accep- tor's signature should be on the bill at the time when the accept- ance is completed by delivery, or, to use the words of see, 21, at the time of "delivery of the instrument in order to give effect thereto." It was therefore a necessary part of the plaintiff's

that when the bill was handed over by Mr. Bull to the H. 0. of A.

forger in completion of the bank's acceptance it bore the stamp os 'the bank. In that respect the plaintiff's evidence entirely Suir

The fair inference from the facts proved is that the bank @o.yi/roran

ip was not on the bill when Mr. Bull delivered it for payment. Basxixe Co.

Bull says that his signature alone was sufficient authority to ae ai

e cashier to pay, and the stamp bears on its face primd facie 9 domes.

ence that it was put on either after, or concurrently with

yment. Regarding the evidence in the most favourable light

the plaintiff, he has left it in doubt whether the bank stamp,

is to say the bank's signature, was or was not on the bill

n it was delivered to the forger in signification of the bank's

ptance. Under these circumstances, I am of opinion that

e was no evidence on which the learned District Court Judge

ld have legally found that the bank had accepted the bill and

he ought therefore to have nonsuited the plaintiff. That is

icient to support the judgment of the Supreme Court.

another question of great importance was raised, and upon

he bank claimed that even if it had accepted the bill it was

d from the ordinary consequences of payment to a forger

the provisions of sec. 60 of the Bills of Exchange Act. I see

'reason to doubt on the evidence that the bill was paid in good

h and in the ordinary course of business. The finding of the

ned District Court Judge as to the defendants' negligence is

y opinion irrelevant to any issue of fact which can be raised

er that section. The objection insisted on by Mr. Perry in

course of his able argument was that the section could have

to the bill under consideration having regard to the

tack of the bill. It is obvious from the language of the

on that it is not dealing with any bill payable to order on

and, but with a bill in respect of which, but for the section, it

d be incumbent on the banker to show that the indorsement

the payee was made by the authority of the person whose

ment it purports to be. The only case in which it could

incumbent on the banker to give such evidence is where the

to demand payment arises by virtue of the indorsement. I

H.C. or A. entirely concur in the view expressed by the Chief Justice of the

'Transvaal in construing a similar section in the legislation of the simu Transvaal (see. 38 of the Bills of Exchange Proclamation in

i! Johannesburg Star, 14th April 1909, quoted from Journal of the 9 q!

Eare! eae Institute of Bankers of New South Wales, 30th September 1909,

Lr. p. 351). He says: - * Now I am quite clear that the word 'in- dorsement' was used in sec. 58 in the legal or technical sense, because an indorsement made, not animo indorsandi, but for the purpose of identifying the person who actually received money, could have no legal consequences beyond those which would follow the signing of an ordinary receipt. And the use of

the word in that sense is quite incompatible with the general

The reason of the protection conferred by the section is the obligation of the banker to pay on indorsements which come to him in the ordinary course of business under circumstances in which it is in most cases impossible to test their genuineness. Where payment is made to the holder, as holder, and not as indorsee, where he is not bound to indorse before obtaining pay- ment, and he is asked to put his name on the back merely as a receipt, or as test of identity, the reason for the protection is at an end. In such a case the bank pays because it is satisfied as to the identity of the payee, and not because it is satisfied as to the genuineness of the indorsement. It is quite clear on the evidence that the bank did not pay or intend to pay on the indorsement of the forger. It treated him as a holder entitled to demand pay- ment, under sec. 8 sub-sec. 5 of the Bills of Exchange Act, as if the bill had been made payable either to himself or to his order. His signature was obtained merely for the purpose of identifying him as the payee, - the payee named in the bill whom he fraudu- lently represented himself to be. The special finding of the learned District Court Judge as to the real nature of what the respondent counsel now claims to be an indorsement is entirely in accordance with the evidence. In the face of that finding it is impossible, in my opinion, that the bank can successfully claim the protection of sec. 60. For these reasons I am of opinion that the learned District Court Judge ought to have nonsuited the plain-

'and that the judgment of the Supreme Court upholding that H. ©. oF A.

, though for other reasons, must be affirmed. sana' assy

cs J. The first question is whether any contractual qoisipo tion between the parties to the action has been established. bt aul e appellant says there has been created such a relation, because Lrp. writing of the words "J. Bull" on Exhibit B. was an accept- jaca, of that part and consequently of the whole set, and at all the fact of acceptance has been found in his favour and sould stand. I am of opinion that the signature cannot be ed as an acceptance by the bank, and that the finding can- no be supported. The appellant's main reliance was placed on 5 of the Companies Act 1899 (No. 40), and certainly this ion puts his case at least as high as it can possibly be put. e says that paragraph (6) of that section is satisfied because bill was accepted on behalf of the company by J. Bull, he in fact a person having the authority of the company to such a bill: Okell v. Charles (1) was cited in aid. But in he first place and underlying the whole of that argument there e fundamental requisite which must be examined first, ely, that Bull's signature, supposing it to be equivalent to the signature, amounted to an acceptance of the bill within ie ordinary mercantile meaning of the term. If it did not, re is an end of the appellant's case, and I am of opinion it ably did not. Sec. 17 (1) of the Bills of Exchange Act defines acceptance as "the signification by the drawee of his nt to the order of the drawer." 'The order of the drawers was to pay to the appellant's order, ch by virtue of sec. 8 (5) meant to pay to him or his order at option. nd therefore the question resolves itself into this, should the ure of J. Bull upon the bill handed back to the person who ented the part signed be regarded as the signitication by the ink within the meaning of the Act that it undertook to pay the y to the appellant or to his order at his option? The appel- says, and Sly J. has held, that it should, because see. 17 (2) "The mere signature of the drawee without additional

words is sufficient." But sufficient for what? Plainly to state the fact of assent as well as to append the signature: Hindhaugh v. Blakey (1) in 1878 decided that as the law then stood it was "impossible that a mere signature of a name can be held to fulfil -

. the double requirement that the acceptance shall be in writing on

the bill, and signed by the acceptor" (per Denman J.). The pro- vision relied on was simply to alter that state of the law.

But it was never designed to convert and does not convert a signature, which to the knowledge of both parties was written alio intwitu, into an acceptance, nor does it satisfy the condition of the first sub-section that the assent of the acceptor must be signified, that is, communicated.

We must have recourse to general principles of contract, and particularly to the well known rules of mercantile contract law to ascertain the effect of the signature "J. Bull" and of the cir- cumstances in which it was affixed. An acceptance is universally understood to be a promise by the acceptor to the payee and every lawful holder of the bill to pay it according to the terms of the acceptance. That it is a " promise" by the drawee is recog- nized by the words of the third sub-section of sec. 17, and his con- tract by the proviso to sub-see. (1) of sec. 21, which I shall presently read.

There may, of course, be a contract between the drawer and the drawee that the latter will accept the draft, but even in the days when an acceptance could arise otherwise than by writing it on the bill itself, such a contract, or any promise to the drawer to accept his bill, did not enure to the benefit of the payee unless the promise was communicated to him. Lord Mansfield in Pier- son v. Dunlop (2), said: - "It has been truly said as a general rule, that the mere answer of a merchant to the drawer of a bill, saying 'he will duly honour it' is no acceptance; unless accom- panied with circumstances which may induce a third person to take the bill by indorsement: But if there are any such cireum- stances, it may amount to an acceptance, though the answer be contained in a letter to the drawer." This statement narrowed by a necessary qualification the apparently wider rule deducible

(1) 30.P.D., 136, at p. 141. (2) 2 Cowp., 571, at p. 573.

the earlier case of Pillans v. Van Mierop (1), and the rule H.C. or A. jualified was approved by Le Blane J. in Johnson v. Collings ees 2) in 1800, and by Marshall C.J. in 1817 in the ease Coolidge v. v

son (3). Cowmerctat Tn 1822, in Cow v. Troy (4), a powerful Bench held that a drawee, Baxkrse Co.

u : 3 or SYDNEY ring once written his acceptance with the intention of accepting, Lp. change his mind, and validly obliterate his signature before mmunicating to the holder or the bill delivered back to him. bbott C.J. puts it on the ground that the holder is not prejudiced he is in precisely the same position as if no acceptance That is very much to the point here. Bayley J. "The question is, when the drawee comes under an ment, whether by the act of writing something on the bill, y the act of communicating what has been written to the holder, Thave no difficulty in saying, from principles of common sense, it is not the mere act of writing on the bill, but the making mmunication of what is so written, that binds the acceptor ; 'the making a communication is a pledge by him to the party, enables the holder to act upon it." Holroyd J., referring to old books, said they contained statements that anything which unounts to an assent to pay the bill, whether in writing or other- is in point of law an acceptance - a doctrine he rejected. J. said (6) a person might by mistake have written an ce on the wrong bill, and, "not meaning to accept that he does that which shows, that it was his intention not to into such a contract." fe adds furthe Nobody can be injured by it. When the goes back it isin as good a state as it came. The party is till placed in the same situation." The bill the subject matter of that action was dated 1820, and e next year, by the Act 1 & 2 Geo. IV., ¢. 78, sec. 2, it was ided that acceptances of inland bills must be in writing on ll, or if there were more than one part of the bill, on one of 'ts. This was extended to foreign bills in 1856 by 19 & 20 c. 97. Since 1821, however, there has been no decision

(4) 5B. & A., 474. 1 East., 98. (5) 5 B. & A., 474, at p. 479. 2 Wheat., 66, at p. 69. (6) 5 B. & A., 474, at p. 481.

which lays down any new rule regarding the necessity of com- f munication of assent to the payee or a subsequent holder of the -

bill. On the contrary, the doctrine of Cow v. Troy (1) was at the -

root of Bank of Van Diemen's Land y. Bank of Victoria (2) in 1871, and the case itself was expressly acted on, with the added comment by Mr. Justice Byles in his work on bills, that the acceptance could be withdrawn "at least before the fact of acceptance is communicated to the holder," as appears from pp. 537 and 538 of the report.

This law, to which it would have been unnecessary to refer but for the argument as to the construction of the Act, has now been embodied in the Code, see. 21, sub-sec. (1), which is in these terms: "Every contract on a bill, whether it be the drawer's, the acceptor's or an indorser's is incomplete and revocable, until delivery of the instrument in order to give effect thereto.

" Provided that where an acceptance is written on a bill and the drawee gives notice to or according to the directions of the person entitled to the bill that he has accepted it, the acceptance then becomes complete and irrevocable."

See Byles, 16th ed., at p. 266, and Lord Halsbury's Laws of England, vol. 11, at p. 481.

It can hardly be imagined that delivery to a person not being the person entitled to the bill or according to his directions ean be of greater efficacy than notice to such person of acceptance.

No change in the law has therefore been worked in this respect, and but for the strenuous contention of the appellant, I should have thought no doubt could have existed.

With these considerations before us, I proceed to inquire upon the facts, whether Bull's signature can in any case be regarded as an acceptance and, if so, whether it was properly signified. I should say at the outset I attach no importance to the various "Paid" stamps. They cannot be regarded in themselves as acceptances, nor were they so treated by the learned Judge of first instance or the learned Judges of the Supreme Court. In conjunction with Bull's evidence as to the way he wrote his signature, the " Paid" stamps were regarded by one learned Judge as sufficient evidence of acceptance - which is different. And by

other Judge actual payment together with sec. 17 (2) was conclusive evidence of acceptance. But the "Paid" hemselves were of course not the actual acceptances -

fact then rests on the signature, "J. Bull." first observation I would make is that the learned primary makes no specific finding as to the reason why Bull wrote sname. Pring J. apparently was satisfied that he did so as an rity to the cashier to pay cash for the draft on presentation. is therefore no finding of fact on this point adverse to the ondents, and in any case the evidence is all one way. To n with, the bill is one payable on demand and drawn upon a ker. Such a bill is really a cheque (see sec. 73 of the Act), is not ordinarily accepted, see Byles on Bills, 16th ed., p. 256, e(b), and Lord Halsbury's Laws of England, vol. u1., p. 463, (a). No presumption of acceptance can therefore be drawn n the mere fact of payment, or the presence of " Paid" stamps. n the evidence is that the thief came into the bank for the e, not of procuring an acceptance from the bank - which id have been an absurd act on his part - but to get immediate nt without such an unusual and unnecessary formality as ary contract to pay. When he produced the part he stolen - that is the second part of the set - Bull endeavoured ty himself as to the presenter's identity, and then marked ff, signing it to pay cash. He wrote "J. Bull," and that to the teller, it had to be paid, which was of course instant Bull says: "I handed it back to the payee ; he took it io the teller. I suppose he left the bank. He went to the teller. do not know where he went to then. He went straight to the teller and got the money. My signature is the authority to the to pay cash." After referring to the plaintiff, he says: other man who brought the second to me for payment did ot say anything about acceptance. . . . The other man did say he presented it for acceptance." Neither Bull nor the

signature, or anything more than a mark of internal ion or youcher, by which a superior officer authorized

they were, they clearly so far as the evidence goes were Gamat signified as such to anybody. The whole case of accept- Baykrxe Co.

H.C. or A. another officer bound to obey his directions to pay out the cash

I therefore hold that there was no reasonable evidence of

As for signification, if established, it appears to me fatal to the appellant. The appellant gravely adopts the unauthorized act of the thief in presenting the bill for payment to himself - for there is no pretence he even presented it for acceptance - and adopts the intimation to him that it would be paid to himself, and after treating him as the appellant's agent to. so present the bill and receive the intimation, suddenly drops him in the very middle of the transactiun, disavows the receipt by him of the money and the payment to him by the bank, and asks the bank to pay the second time. In my opinion that is not competent to the appel- lant. If he adopts the act of presentation at all, supposing he is in a position to do so, he must adopt it in its entirety, because authority to present for immediate payment implies necessarily the authority to the bank to make and the messenger to receive payment on the spot. Either the appellant must forego significa-

tion and fail to establish "acceptance," or adopt it with its conse-

Even if the two operations could be separated, and assuming an agreement amounting to acceptance otherwise established, I should be prepared to hold on the principle of Cundy v. Lindsay (2), and of Lewis v. Clay (3), that the bank's mistake as to the identity of the person to whom the promise was made, his identity being a most - perhaps, the most - material circumstance, would prevent a binding contract arising. So far I have assumed Bull was authorized to sign for the company in his individual name. But there is no evidence that he was, and consequently there is no evidence that the name "J. Bull" was the drawee's signature required by sec. 17 (2) (a) in the paragraph relied on by the appellant.

In In re Adansonia Fibre Co. (4), James LJ. said : - * Now it is the law of this country, and it has always been the law of this country, that nobody is liable upon a bill of exchange unless

(1) 5 App. Cas., 754, at pp. 783, 784. (3) 67 L.J.Q.B., 224. (2) 3 App. Cas., 459. () LR. 9Ch., 635, at p. 643.

vhich he is one, appears either on the face or on the back of Dill. That is the clear law of this country." And the Court n the evidence came to the conclusion in that case that th

it the company, and accordingly the company was not le on the bills. Again in Yorkshire Banking Co. v. Beatson 'Thesiger UJ. in delivering the judgment of the Court said: a mame which in itself indicates an individual is, notwith- ing the effect of any legal presumption, ambiguous, and re are likely to be few if any cases where the decision of the or of a Court will be rested upon the presumption alone." so the Court felt called upon to decide whether the signature bills, upon which the dispute arose, was intended to denote nd did denote the partnership of which the defendant was a nber.

(0 doubt see. 26 (2) would assist in many cases, but not in such as this. It is admitted that Bull did not intend to accept personal capacity; the only question of fact on this part of 'inquiry is whether the signature intended to bind the bank s the bank's signature.

ng that the company's name is not used in the acceptance, that there is another good reason in fact for the presence of signature, a reason which is not controverted, the burden of that the words "J. Bull" were intended to mean ed, The Commercial Banking Company of Sydney " rests in my opinion on the appellant, and has not been He has not shown any authority express or implied for the bank without using the bank's name.

general principles, therefore, I hold that the facts afford no ce of any intent to accept in the statutory or mercantile

any argument that can be drawn from dicta in Okell es (2), that the intention to make the signature that of

way upon the face of the document. The most recent case, C.P.D., 109, at p. 125. (2) 34. L.T., 822,

ume, or the name of some partnership or body of persons, H.C. oF A.

2° Commenciar, on the bills by certain individuals were not intended to Baykrs

H.C. or A. and in it Okell v. Churles (1) was cited, is Chapman v. Smethurst - 1910.

(2), which is adverse to the appellant. I think, therefore, the appellant entirely fails to sustain acceptance, and there being therefore no promise by the bank to pay him, the judgment for

With respect to see. 60 I agree with the appellant, the case is not within it.

One observation may advantageously be made at the outset. Sec. 32 provides with respect to negotiation by indorsement - "The simple signature of the indorser on the bill without addi- tional words, is sufficient." .

There is no doubt that in one sense indorsement means writing the name of a party on the bill (see per Alderson B. in Marston y. Allen (3). If, however, the appellant is correct as to the corresponding words of the Statute in see. 17 with respect to acceptance being all sufficient, then, by parity of reason, the words of sec. 32 would be a complete answer to his objection under sec. 60. But the same considerations as apply to accept- ance apply to indorsement. The latter like the former is a well understood term in mercantile law. It is always used - when technically employed - in connection with negotiation or transfer for collection. Its meaning is a secondary one. Lord Campbell CJ. in Lloyd v. Howard (4) says: - * An indorsement requires that there shall be a delivery of the bill with an intent to make the person to whom it is indorsed owner of the bill; a party to the bill; a transferee of the property in it." And he gives examples of writing that is not an indorsement because there is either no authorized delivery, or delivery without the intent to transfer the property in the bill. In Ex parte Yates (5), Knight- Bruce LJ. and Turner LJ. held a signature on the face of a note to be an indorsement because intended to add a new person to those already liable. The former said (6): - "It is clear that a signature having the effect of indorsement, and according to a secondary sense of the term called an indorsement, may be written on the face of the note, and, if written with the same

15 Q.B., 995, at p. 999. eG. & Je, 191. DeG. & J., 191, at p. 193.

tion and effect as if written on the back, will have the same H. ©. or A. It would be very absurd if it had not." This clearly ue cates that the intention and purport of the signature must be gira

wt of the composite operation called indorsement. It is never had

COMMERCIAL plete without delivery, and so the Code defines it (sec. 2), Baskixa Co.

consistently with what has already been said, there never es nee be delivery to the drawee, in the sense required. See Lord falsbury's Laws of England, vol. 1., p. 610, note (&e.).

Reading sec. 60 by the light of these considerations it appears to me clear that the present case does not fall within its protec- It is suggested in the note to Lord Halsbury's book just

juoted that the terms of sec. 60 as to "indorsement of the payee

wr negotiation, or at least collection, and those as to the banker deemed to have paid the bill in due course, notwithstanding forged indorsement, imply payment made to an ostensible er under the indorsement. And that appears to me to be and to follow from the principles already adverted to.

8 (5), as previously mentioned, enables the payee of a bill ble to order to do either of two things at his option. He request payment to himself personally, or he may order the rawee to pay another. That is the meaning of "order." It is contradistinction to personal receipt. If the payee requires ent to himself, and at the request of the drawee writes his ne on the back of the document, that is not an order, it is nee of identity. He needs no order to pay himself; the ite itself gives him that right, just as the common law did e Smith v. WClure(1). In that case Lord Ellenbrough C.J. "A bill payable to a man's own order was payable to self, if he did not order it to be paid to any other."

The payment, therefore, in this case was not made upon the of the person who received the money, and the name he peas not a the nature of an indorsement. dite conclusion.

ependently by the history of sec. 60, 4 as stated in 'Captiil and 'ies Bank Ltd. v. Gordon (2). It is there said by Lord

) 5 East, 476, at p. 477. (2) (1903) A.C., 240, at p. 251.

of forged indorsements on cheques drawn payable to order, not any protection toa bank paying immediately to the wrong person, who comes direct for payment, but to cases where the bank has to act upon nothing but what appears to be a regular and honest indorsement to the person presenting the instrument. We have been referred to the case of National Bank v. Paterson, (Journal of N.S.W. Institute of Bunkers, 30th September 1909), (officially reported (1)), where Znnes C.J. and Curlewis J. held upon the same words in the Transvaal Bill of Exchange Pro- clamation in accordance with the views above expressed.

There was a question of fact as to payment in the ordinary course of business, which ought to be determined in the bank's favour. There was also a question, one of law, as to whether negligence per se disentitled the bank to the protection of the section. In this respect also the answer should be against the appellant, because good faith covers the bank so long as the trans- action is in the ordinary course of business, and the argument advanced would annihilate that provision. In the result I think the views of the Supreme Court on the respective branches of acceptance and indorsement should be reversed, but as success upon either is sufficient to support the defence, the judgment appealed against was right and should stand.

Solicitor, for the appellant, P. K. White. Solicitors, for the respondents, Cape, Kent & Gaden.

At a glance

Court

Decision date

Before

Source

Judgment (179 paragraphs)