Presump tion of

value and bona fides may shift.

shown to have been stolen from the true owner. It lies on the holder to prove that he gave value.1

6. An acceptance is given in renewal of a bill which turns out to be a forgery. The genuine bill is negotiated, and the holder sues the acceptor. Evidence is given of these facts. It lies on the holder to prove that he is a holder for value.2

7. A partner accepts a bill in the firm's name for a private debt and in fraud of his co-partners. The bill is negotiated. The holder sues the firm as acceptors. As soon as it appears that the bill was given for a private debt, the holder is called upon to prove that he is a holder for value.3

NOTE. If the holder show that he is a holder for full value, it lies on the defendant to show that he took the bill with notice, for the presumption of bona fides is re-established; but what if the holder did not give full value? In America it is held that if the holder has in good faith given partial value, he may recover pro tanto. Probably the same would be held in England.

1 Raphael v. Bank of England (1855), 17 C. B. 161.

2 Mather v. Maidstone (1856), 1 C. B. N. S. 273.

3 Hogg v. Skeen (1865), 18 C. B. N. S. 426.

4 Raphael v. Bank of England (1855), 17 C. B. 161; but cf. Jones v. Gordon 1877), 2 L. R. Ap Ca. at 628.

5 Holcomb v. Wyckoff (1870), 10 Amer. R. 219; Dresser v. Missouri Co. (1876), 3 Otto. 92, Sup. Ct. U. S.

CHAPTER IV.

TRANSFER.

Transmission by Act of Law.

Art. 98. If a bill be held by an unmarried woman Marriage. who subsequently marries, or if a bill be made payable to a married woman, the title thereto vests in the husband, provided he reduce it into possession.1

Explanation 1.-If the husband dies without having reduced the bill into possession the title thereto reverts to the wife if she be alive, and passes to her personal representatives if she dies before her husband.2

Explanation 2.-During the marriage, the husband is for all purposes deemed to be the holder of a bill payable to the order of his wife, whether it was made payable to her before or after the marriage.3

ILLUSTRATIONS.

1. Bill payable to the order of C., a single woman. C. marries D. C., after marriage, indorses the bill to E. without her husband's

1 Cf. Fleet v. Perrins (1868), 3 L. R. Q. B. at 541, affirmed 4 L. R. Q. B. 500. As to what is or is not a reduction of a bill into possession: Cf Nash v. Nash (1817), 2 Mad. 133; Sherrington v. Yates (1844), 12 M. & W. 855, esp. at 865, Ex. Ch. ; Hart v. Stephens (1845), 6 Q. B. 937; Scarpelini v. Atcheson (1845), 7 Q. B. at 875-876; Latourette v. Williams (1847), 1 Barb. 9. New York. Parker v. Lechmere (1879), 12 Ch. D. 256.

2 Hart v. Stephens (1845), 6 Q. B. 937; Williams on Executors, 7th ed., pp. 848-852.

3 Cf. McNeilage v. Holloway (1818), 1 B. & Ald. 218.

Marriage. consent. The indorsement is invalid: ' but D. could validly indorse the bill, using his own name.2

Death.

2. A note is made payable to the order of C., a married woman. Her husband indorses it in his own name. This is a valid indorsement.3

NOTE.-When a bill is made payable to the order of a married woman, the husband may sue on it in his own name alone, or if he likes he may join his wife. When a bill is payable to the order of a single woman, who subsequently marries, both husband and wife should join in an action on it; but it has once been held that the husband may sue alone."

Exception.-Bill forming part of wife's separate

estate.6

Art. 99. On the death of the holder of a bill the title thereto passes to his personal representatives, (executors or administrators, as the case may be).7

ILLUSTRATIONS.

1. C., the holder of a bill payable to order, dies. His administrator can enforce payment of it or indorse it away, using his own name.8

2. C., the holder of a bill payable to order, dies, having specifically bequeathed it to X. X. cannot sue on it or indorse it away, unless he first obtain an indorsement of the bill to him by C.'s

executor.

NOTE.-An executor or administrator who indorses a bill should, in express terms, exclude personal liability, see Art. 76; and as he is not the agent of the deceased he cannot by his delivery complete an indorsement written by the latter. He must indorse it de novo, see Art. 54. When there are two or more executors, the

1 Connor v. Martin (1746), cited 3 Wils. at 5.

2 Roberts v. Place (1846), 18 New Hamp. R. 183.

3 Mason v. Morgan (1834), 4 N. & M. 46; Cf. Smith v. Marsack (1848), 6 C. B. 486 at 503.

4 Fleet v. Perrins (1868), 3 L. R. Q. B. at 541.

3

McNeilage v. Holloway (1818), 1 B. & Ald. 218; but cf. Sherrington v. Yates (1844), 12 M. & W. at 865, Ex. Ch.

Green v. Carlill (1877), 4 L. R. Ch. D. 882, and Arts. 65, 66; Cf. Art. 81, Excep. 2.

Williams on Executors, 7th ed., 786.

8 Rawlinson v. Stone (1746), 3 Wils. 1 Ex. Ch.

indorsement of one is probably sufficient to transfer the property Death. in the bill.

Art. 100. A bill may be seized in execution by Execution. the sheriff under a writ of fieri facias.'

Explanation.-Payment to the sheriff of a bill so seized is valid, and, if the judgment-creditor give security, an action may be brought on the bill in the name of the sheriff.2

NOTE. The language of the Act is obscure and ungrammatical. Can the sheriff hand over to the creditor or sell a bill payable to bearer? The Act gives him no power to indorse a bill payable to order. Further, he is responsible to the judgment debtor for any surplus over the amount of the debt and costs. It would seem then that he must keep all bills and endeavour to collect them himself. As to execution against bills and notes under the County Court Acts, see 9 & 10 Vict. c. 95, ss. 96, 97.

Art. 101. If the holder of a bill, who is the bene- Bankficial owner of it, become bankrupt, or if a bill be ruptcy. made payable to a bankrupt for his own account, the title thereto vests in his trustee in bankruptcy.*

NOTE. The title of the trustee relates back to the commencement of the bankruptcy. It is sometimes a difficult question to determine the exact time when a bankruptcy commences, but this is a question beyond the scope of a treatise on bills. When the holder has merely a lien on a bill his trustee stands exactly in his shoes, having the same rights and duties in regard to it." Where a bill is indorsed to an uncertificated bankrupt, it seems he may sue on it in his own name, unless his trustee interferes and objects.

Explanation.-Subject to Art. 102, if the holder

1 1 & 2 Vict. c. 110, § 12. As to a cheque drawn by the AccountantGeneral of the Court of Chancery but not issued: Cf. Watts v. Jefferies (1851), 3 Mac. & G. 422; Courtoy v. Vincent (1852), 21 L. J. Ch. 291.

21 & 2 Vict. c. 110, § 12.

Cf. Mutton v. Young (1847), 4 C. B. at 373.

4 Cf. Bankruptcy Act, 1869. 32 & 33 Vict. c. 71, § 15, cl. 3; Cf. Green v. Steer (1841), 1 Q. B. 707.

5 Cf. Ex parte Buchanan (1812), 1 Rose, 280.

Herbert v. Sayer (1844), 5 Q. B. 965; approved Jameson v. Brick and Stone Co. (1878), 4 Q. B. D. 208 C. A.

Bankruptcy.

of a bill is not the beneficial owner of it, the title thereto does not pass to his trustee in bankruptcy.1

ILLUSTRATIONS.

1. C. indorses a bill to D., his agent, for some special purpose. D. becomes bankrupt. The title to the bill does not vest in D.'s trustee.2

D. becomes 2. D. by fraud induces C. to indorse a bill to him. bankrupt. The title to the bill does not pass to D.'s trustee.3

Exception 1.-The bankrupt holder of a bill who negotiates it before the date of the order of adjudication can give a good title to a person who takes it in good faith for value, and without notice that such holder has committed an act of bankruptcy available for adjudication.*

NOTE. As to what constitutes such notice, see Ex p. Gilbey.5

Exception 2.-Payment of a bill to a bankrupt holder is valid if made before the date of the order of adjudication in good faith, and without notice that he has committed an act of bankruptcy available for adjudication.6

Exception 3.-An accommodation bill given for the accommodation of the bankrupt (probably) does not pass to the trustee in bankruptcy.

ILLUSTRATIONS.

A. draws a bill on B. payable to his own order. B. accepts it to accommodate A. A. is adjudicated bankrupt. He subsequently

1 Bankruptcy Act, 1869, § 15, cl. 1; Cf. Harrison v. Walker (1792), Peake Ad. Cas. 150.

2 Ex parte Armistead (1828), 2 G. & J. 371; Cf. Belcher v. Campbell (1845), 8 Q. B. at 11. See e.g. Thompson v. Giles (1824), 2 B. & C. 422, bill entered "short" by banker.

3 Harrison v. Walker (1792), Peake Ad. Cas. 150.

Bankruptcy Act, 1869, §§ 94-95.

5 Ex parte Gilbey (1878), 8 Ch. D. 248, C. A.

6 Bankruptcy Act, 1869, ss. 94, 95.