dorsement be traversed, must be proved, because the acceptor is not supposed to look any further than the hand-writing of the drawer (x). In an action by indorsee against acceptor, where the defence was, that the acceptance was a forgery; evidence, that a collection of bills, having on them forgeries of defendant's signature, had been in plaintiff's possession, and that some of such bills had been circulated by him, was held inadmissible; distinct proof not having been given, that the bill, on which the action was brought, formed part of the collection; inasmuch as such evidence would have been inadmissible on an indictment for forgery (y).

The acceptance of a bill drawn by procuration, admits the drawer's handwriting and the procuration (z). But although the bill be indorsed by the same procuration, the date thereof not appearing, the acceptance does not admit the procuration to indorse (a). Proof, first, that J. S. was the confidential clerk of the defendants, and had been introduced by them to their bankers, as one to whom they were to pay the same attention as they would to the defendants themselves: 2ndly, that defendants had, in repeated instances, recognized his authority to draw both bills and checks by procuration by them; lastly, that on three occasions J. S. had indorsed bills by procuration for them, on one of which occasions the defendants must have known of it; and in the other two instances, the defendants had received the money raised upon the bills: it was held, that although an authority to draw does not in itself import an authority to indorse, yet the evidence of such authority to draw was not to be withheld from the jury, who were to determine on the whole evidence, whether such authority to indorse existed or not, and from the foregoing facts they might well draw the inference that it did (b).

A bill of exchange was shown to the defendant, whose name appeared on the bill as acceptor, and he was asked whether it was his handwriting; he said it was, and that the bill would be duly paid; Lord Ellenborough, C. J., held, that this accredited the bill, and the plaintiff having been thereby induced to take it, the defendant could not set up as a defence that his name, as written on the bill, was a forgery (c). A forged bill was drawn upon the plaintiff, which he accepted and paid to an innocent indorsee, who had given a valuable consideration for the bill; on discovering the forgery, the plaintiff brought an action for money had and received, to recover back the money; it was held, that the action would not lie; Lord Mansfield, C. J., observing, that it was incumbent on the plaintiff to have been satisfied as to the drawer's hand-writing be

(x) Smith v. Chester, 1 T. R. 654; Cooper v. Lindo, B. R. London Sittings after M. T. 52 Geo. III. S. P. as to handwriting of second indorser being alleged in declaration.

(y) Griffits v. Payne, 11 A. & E. 131; 3 P. & D. 107.

(z) Robinson v. Yarrow, 7 Taunt. 455. (a) S. C.; and see Parke, B.'s, judg ment in Beeman v. Duck, 11 M. & W. 255. (b) Prescott v. Flinn, 9 Bingh. 19.

(c) Leach v. Buchanan, 4 Esp. N. P. C. 226.

fore he accepted the bill (d). The defendants took a bill, accepted payable at the plaintiffs', who were the drawee's bankers, and indorsed it to their, the defendants', agents, to whom the plaintiffs paid it when due, and seven days after sent it as their voucher to the drawee, who apprized them that the acceptance was forged. Held by three Justices against Chambre, J., that the plaintiff's could not recover from the defendants the amount which they had thus paid them on the forged acceptance (e). But where the plaintiffs (bankers) discounted for the defendants (bill-brokers) a bill of exchange which the latter did not indorse, and it turned out that the signatures of the drawer and acceptor (the latter of whom kept an account with the plaintiffs) were forged; it was held, that the defendants were liable to refund the money (f).

Where a bill of exchange purports to be drawn by a plurality of persons, and is so declared on, the acceptor of such bill will not be permitted to prove that the supposed firm consisted of one person only (g). In a declaration by indorsee against acceptor of a bill of exchange stated to be "drawn by certain persons by and under the name, style and firm of G. & Son," and that "the said persons by and under the said name, style and firm of G. & Son" indorsed it: this was held a sufficient description of the drawer and indorser (h). Where a bill is drawn in the name of a fictitious person, payable to the order of the drawer, the acceptor is considered as undertaking to pay to the order of the person who signed as drawer; and, therefore, an indorsee may bring evidence to show that the signature of the supposed drawer, to the bill and to the first indorsement, are in the same hand-writing (i). Where a bill of exchange, purporting to be drawn by B. & W. (a really existing firm), payable to their order and to be indorsed by them, was negotiated by the acceptor with that indorsement upon it, and the drawing and indorsement were forgeries; it was held, that if the bill was accepted and negotiated by the acceptor with knowledge of the forgery, he was estopped from denying the indorsement as well as the drawing by B. & W. (k).

Action by the indorsee against the indorser of a bill of exchange. The declaration stated several indorsements prior to that of the defendant, which was immediately to the plaintiff. A question arose, whether, upon proof of the defendant's hand-writing, it was necessary to prove the hand-writing of any of the prior indorsers, and particularly that of the original payee. The plaintiff's counsel contended, that the defendant's indorsement admitted all antecedent indorsements; that even if they were forged he would be liable; that he was to be considered as the drawer of a new bill of

(d) Price v. Neal, 3 Burr. 1354; 1 Bl. R. 390, S. C.

(e) Smith v. Mercer, 6 Taunt. 76.
(f) Fuller v. Smith, 1 Ry. & Moo. 49.
(g) Bass v. Clive, 4 M. & S. 13.

(h) Tigar v. Gordon, 9 M. & W. 347. See Ball v. Gordon, 9 M. & W. 345. (i) Cooper v. Meyer, 10 B. & C. 468. (k) Beeman v. Duck, 11 M. & W. 251.

exchange and that his contract was very different from that of the acceptor, who only undertook to pay to the payee or his order, and against whom, therefore, a title through the payee must be established. Lord Ellenborough was of this opinion, and the plaintiff had a verdict (1). Action for money paid by plaintiffs, Messrs. Forsters, Lubbock, & Co., bankers for defendant. A bill of exchange was drawn on defendant by one Hanley, payable to his own order, which defendant accepted, "payable at Forsters, Lubbock, & Co., London," the plaintiffs; when this bill was presented at the plaintiffs' house, it was paid by them, and the action was brought to recover the sum so paid. Plaintiff's proved the acceptance, and the fact of payment, and contended they were entitled to recover without proving the indorsement of the drawer, which was upon the bill at the time it was paid by them; alleging that the bill, when presented, being prima facie in a negotiable state, they were authorized to pay it, and were not bound to inquire into the title of the holder; but Lord Ellenborough ruled that it was necessary to prove the first indorsement (m). In an action against the drawer of a bill, payment of money into court, upon the whole declaration, is an admission of the drawing (n).

In order to make the declaration of a prior holder of a bill of exchange evidence, there must be a community of interest between him and the party against whom such evidence is proposed to be given (o). In the absence of any community of interest, declarations. are not to be received to affect the title or interest of other persons, merely because such declarations are against the interest of those who make them. The general rule, that the living witness is to be examined on oath, is not subject to any exception so wide; and the circumstance of fraud being acknowledged does not introduce any difference in principle (p).

A receipt upon a negotiable instrument may be contradicted or explained by parol evidence (q). Where the plea was, want of consideration for the defendant's acceptance, concluding with a verification, and the plaintiff replied, setting it out, under a scilicet, and concluded to the country; it was held, that the plaintiff was not bound to prove the consideration (r).

The signature of a party to a bill may be proved by a person who has seen him write his surname only, several times (s).

The copy of an original letter, giving notice of the dishonour of

(1) Critchlow v. Parry, B. R. 2 Campb.
182. See Macgregor v. Rhodes, 25 L. J.,
Q. B. 319.

(m) Forster v. Clements, 2 Campb. 17.
(n) Gutteridge v. Smith, 2 H. Bl. 374.
(0) Barough v. White, 4 B. & C. 325.
(p) Per Lord Denman, C. J., delivering
judgment of court, in Phillips v. Cole, 10
A. & E. 111; 2 P. & D. 291.

(q) Scholey v. Walsby, Peake's N. P. C. 24, recognized by Lord Tenterden, delivering judgment in Graves v. Key, 3 B. & Ad. 318. See Phillips v. Warren, 14 M. & W. 379.

(r) Low v. Burrowes, 4 Nev. & M. 367; and see Batley v. Catterall, 1 M. & Rob. 379.

(s) Lewis v. Sapio, M. & Malk. 39.

1

:

a bill produced, and subject-matter of action, is admissible in evidence without notice given to produce the original (t); but, secus, if bill not produced, nor subject-matter of action (u). It is not necessary to give a notice to produce the notice of dishonour (x).

In an action against the drawer of a foreign bill, the protest, being part of the custom of merchants with respect to foreign bills, must be proved, if the bill has been drawn for actual value in the hands of the drawee (y) but not otherwise (2). A promise by the drawer, after the bill is due, that he will pay it, supersedes the necessity of producing the protest; for in such case it will be presumed, from the party's not objecting to the want of a protest at the time when he made the promise, that he has received due notice of dishonour by a protest regularly drawn up by a notary (a). The presentment of a foreign bill in England must be proved in the same manner as if it were an inland bill. A notarial protest under seal is not evidence of such presentment (b).

A bill of exchange, payable to the order of the drawer, may be given in evidence under the count for money had and received, in an action brought by the drawer and payee against the acceptor (c). It seems, that, in an action by payee against acceptor, the bill would not be evidence of an account stated, in a case where the bill was drawn by a third person (d).

Recovery of Interest.-On bills of exchange payable at a day certain, and not carrying interest on the face of them, interest is recoverable from the day on which the bills become due. The general rule at the present day, with respect to the allowance of interest, is much narrower than it was formerly. The modern doctrine is, that interest ought to be allowed in those cases only, where there is a contract for payment of money on a certain day, as on bills of exchange and promissory notes; or where there has been an express promise to pay interest; or where, from the course of dealing between the parties, it may be inferred that this was their intention; or where it can be proved that interest has been actually made of the money (e). Hence upon a mere simple contract of money lent, without an agreement for payment of the principal at a certain time, or for interest to run immediately, or under special circumstances, whence a contract for interest may be inferred, interest is not allowable (f). In a contract for the sale of

(t) Kine v. Beaumont, 3 Brod. & Bingh. 288. By C. B., after conference with B. R. (u) Lanauze v. Palmer, M. & Malk. 31. (x) Swain v. Lewis, 2 Cr. M. & R. 261. (y) Gale v. Walsh, 5 T. R. 239. See Armani v. Castrique, 13 M. & W. 450.

(z) Legge v. Thorpe, 12 East, 171; 2
Campb. N. P. C. 310, S. C.

(a) Gibbon v. Coggon, 2 Campb. 188.
(b) Chesmer v. Noyes, 4 Campb. 129,

per Lord Ellenborough, C. J.

(c) Thompson v. Morgan, 3 Campb. 101. (d) Early v. Bowman, 1 B. & Ad. 889. (e) Per Lord Ellenborough, C. J., in De Haviland v. Bowerbank, 1 Campb. 50. See Hare v. Rickards, 7 Bingh. 254; Higgins v. Sargent, 2 B. & C. 349, Abbott, C. J.

(f) Calton v. Bragg, 15 East, 223; Shaw v. Picton, 4 B. & C. 723; Page v. Newman, 9 B. & C. 378.

goods, although a particular time be limited for payment of the price, yet the vendor is not entitled to interest on the price from that time (g). But if at the time of the original contract, the defendant agreed to pay by bill or note, interest is recoverable (as part of the price) from the time when the bill, if given, would have become due, even in an action for goods sold and delivered (h), and if there is some evidence for the jury of such an agreement, that is sufficient to support the verdict (i). And in such cases interest will be allowed, although the defendant has not accepted the goods, in an action for not accepting the goods (k). Bankers cannot charge interest upon interest upon money advanced by them without an express contract for that purpose. Dawes v. Pinner, 2 Campb. 486, n. Bill was drawn at Barbadoes on the 8th of February, 1809, on a house in London, payable to the plaintiff at sixty days' sight: the bill was refused acceptance on the 17th of April, 1809, and was afterwards presented for payment on the 19th of June following. Lord Ellenborough left the question, from what period the interest was to be calculated, to the special jury, who said that the holder of the bill was entitled to 107. per cent. on the principal, as damages, and that interest was to be allowed only from the time when the bill was presented for payment (1); but in a subsequent case, when the holder did not claim any per centage upon the principal as damages, he was allowed interest from the time the bill was dishonoured for non-acceptance (m). The drawer of a bill which is dishonoured by the acceptor, is not liable to pay interest for the time which elapses between the day whereon the bill becomes due, and the day when the drawer receives notice of the dishonour (n).

By stat. 3 & 4 Will. IV. c. 42, s. 28, “ Upon all debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue or on any inquisition of damages, may, if they shall think fit (o), allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment; provided that interest shall be payable in all cases in which it is now payable by law."

Formerly interest was computed from the day on which the principal became due, to the time of commencing the action; but, according to Robinson v. Bland, 2 Burr. 1085, interest ought to be

(g) Gordon v. Swan, 2 Campb. 429; 12 East, 419.

(h) Marshall v. Poole, 13 East, 98, recognized in Farr v. Ward, 3 M. & W. 25; Porter v. Palsgrave, 2 Camp. 472.

(i) Davis v. Smyth, 8 M. & W. 399.

(k) Boyce v. Warburton, 2 Campb. 480. (1) Gantt v. Mackenzie, 3 Campb. 51. (m) Harrison v. Dickson, ibid. 52, n. (n) Walker v. Barnes, 5 Taunt. 240. (0) See Attwood v. Taylor, 1 M. & Gr. 332; 1 Scott's N. R. 611.