the party concerned has been posted to him, unless it be shown that such letter was of a different tenor from the one alleged to have been sent (a).

No right at law for provision.

But in equity such right would exist.

Right of holder where goods are appropriated to the payment.

SECTION XV.

PROVISION.

BRITISH LAW.

The holder of a bill has no right of action against the drawee for any provision made by the drawer for the payment of the bill, and he can maintain no action at law unless there has been acceptance. Yet in equity the drawer of a bill of exchange drawn against certain specified goods deposited with the acceptor is entitled as against the acceptor to have the proceeds of such goods applied in the first instance in payment of the amount of the bill. And the drawer may transfer this right to the indorsee, who may then maintain a suit to have the proceeds of the goods in the hands of the acceptor applied accordingly (b).

So where goods, consigned to another house, are appropriated to the payment of bills drawn upon them, and the consignees accept the consignment with positive directions to that effect, they cannot set up their general lien upon such goods for any balance due to them by the consignor (c).

What is provision.

FOREIGN LAWS.

France. The provision is any sum or effects which are or ought to be in the hands of the drawee or of the acceptor for the payment of a bill of exchange when it falls due. Provision is held to have been made when on its becoming due the drawee

(a) German Law on Bills of Exchange, §§ 41-47.

(b) Inman v. Clarke, 1 Johns. 768; Ex parte Waring, 19 Ves. 345; Ex parte Parr, Buck's Banks Cases, 191; Ex parte Gledstane, M. D. & De G.

109; Cazenove v. Prevost, 5 B. & Ald. 70; Thayer v. Lister, 4 L. T. Ch. 50 (N. S.).

(c) Frith v. Forbes, 31 L. J. Ch. 793, and 32 L. J. Ch. 10.

holders.

owes to the drawer or payee a sum at least equal to the amount of the bill. And it has been decided that provision has been made even when the effects destined to the payment of the bill of exchange are not realised when the bill becomes due, and that the holder may, if he does not wish to sue immediately the drawer, claim these effects as against the creditors of the drawer. Should the drawee become bankrupt before he has Rights of accepted the bill, the holder may claim the provision previously made in the hands of the drawee, whether in effects or in money, exclusively devoted to the payment of the bill, though if the drawee was simply a debtor of the drawer, the provision is destroyed by the bankruptcy. In case of bankruptcy of the drawer where the bill has been accepted, the provision belongs to the holder, because the acceptance is given under the tacit condition that the provision shall be realised. And it is the same where the provision has been especially devoted to the payment of the non-accepted bill.

Where the bill has not been accepted, and there was no special dedication of the effects to the payment of the bill, there the creditors of the drawer could not claim the provision in the hands of the drawee so as to dispossess the holder of his right, but the drawee could set his own rights against both the rights of the drawer and holder (a).

Portugal. The same law prevails in Portugal. If the provision has been made with the drawee, and the bill is protested for non-acceptance, the holder has the right to demand from the drawer the cession of his rights against the drawee for the amount of the bill, and any documents in support of such rights. The drawer is bound to guarantee the payment of the bill even when the protest has not been duly made, if the provision had not been made before the bill became due. Where, on the contrary, the drawer has made provision, he is discharged from all responsibility (b).

Russia. If the bill is protested for non-acceptance or nonpayment, and the drawer proves that when the bill became due the drawee had funds in his hands sufficient, or that he owed him money, the holder would then have no right against the drawer and indorsers, but he may exercise against the drawee all the rights which belonged to the drawer. If, on the contrary,

(a) French Code, § 115 to 117.

(b) Portuguese Code, § 328–332.

Rights of

holder to

provision.

the provision has not been made, then the holder may sue the drawer and indorsers for payment (a).

Spain. The drawer must provide for the bill. The provision is deemed as made where the drawee owes to the drawer, or to the party in whose favour the bill is drawn, a sum equal to the amount of the bill. If the drawer does not prove that he had made due provision for the bill, or that he was expressly authorised by the drawee to draw the bill for a specific sum, he would have to pay all the expenses caused by the non-acceptance or non-payment.

Who may sue.

Right of trustees to

indorsees.

SECTION XVI.

REMEDIES ON BILLS AND NOTES.

BRITISH LAW.

The right to sue on a bill or note may be exercised by the holder or any of the indorsers, or any person having interest in, or possession of, the instrument, and entitled at law to receive its contents (b).

And when a bill is made payable to a person as trustee for sue on a bill. another, he has a right to sue upon it. So an indorsee may sue on a bill on behalf of the drawer, even after he has been paid by him (c). But once an indorser has paid his indorsee, he cannot sue on the bill in the indorsee's name without his consent (d). Indorsers and Not only the holder of the bill when dishonoured, but any one of the indorsers, has a right to sue; though if the action is instituted by the preceding indorsers, all the subsequent names after that of the plaintiff must be struck out before trial (e). Husband and The husband has a right of action on a bill or note made payable to his wife during coverture (f), though he may join her with him (g). But if it was given to her whilst she was a feme sole, the husband must join (h), and if she dies, her adminis

wife.

trator, and not her husband, has the right of action (a).* If the husband dies before he has reduced the bill into possession, the right of action upon it would revert to his wife (b).

to a firm.

Where a bill is payable to a firm, all the members of it must Bills payable join, even though any of them may not have a partnership interest in it (c).

sued.

The bona fide holder may sue any person whose name was on Who may be the bill at the time when the instrument came into his hands, including in it the acceptor and drawer, and all the prior indorsers.

Where the bill is made or accepted by a feme sole, and she Bills payable to feme sole. marries, her husband must be joined with her; though, if the wife dies before the bill is paid, the husband is not liable for it.

A corporation for trading purposes may be sued on a bill of exchange, provided it be for a purpose within the powers granted by the charter or Act of Parliament. Although in general a corporation can only contract by writing under the common seal, it is allowed to issue bills where the nature of its trading would render it indispensable for it to do so (d). Joint-stock companies are to be sued in the name of their officers.

Provided the action be instituted within six months after the Summary bill has become due, an action on a bill of exchange, or promis- England. procedure in sory note, may be by writ of summons (e). Under this Act the plaintiff, on filing an affidavit of personal service of the writ, or an order for leave to proceed, and a copy of the writ, may at once sign final judgment. Upon application, however, within the period of twelve days from such service, the judge may give leave to the defendant to appear to such writ, and to defend the action, provided he either pays into Court the sum indorsed on the writ, or makes an affidavit satisfactory to the judge, disclosing a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the judge may seem fit.

(a) Hart v. Stephens, 6 Q. B. £37. (b) Gaters v. Madeley, 6 M. & W. 423.

(c) Guidon v. Robson, 2 Camp. 302.

(d) Manchester Waterworks Comp.

8 L. & Ald. 1.

(e) 18 & 19 Vict. c. 67.

In Ireland.

In Scotland.

Sum recoverable.

Bills payable by instalments.

A similar procedure has been introduced in Ireland by the Act to facilitate the remedies on bills of exchange and promissory notes by the prevention of frivolous or fietitious defences to actions thereon (a).

In Scotland the remedy known as summary diligence" is competent on all bills, whether inland or foreign. Upon registration of the protest in the books either of the Court of Session or of the Sheriff Court, to whose jurisdiction the debtor is subject, a warrant and execution may take place without any previous writ. But a charge or requisition of payment must be given to the debtor six free days before the warrant for requisition can be put in force; and at any time before the execution is completed, a judge being one of the Lords of Session, may, if he sees fit, in the exercise of a sound discretion, stay the execution until the merits of any objection or defence which may be stated by the debtor shall be decided by the Court of Session; and such interim stay of diligence, if it be ordered, may also, in the discretion of the judge, be allowed either unconditionally or only on condition of the debtor's finding security for the debt or assigning the amount in bank (b).

The holder may recover the whole sum which is payable on the face of the bill or note, even although he may not himself have given full value for it, or have received part payment from a prior indorser (c). But though the acceptor is liable to the full amount of the bill as between himself and third persons, he is only liable for the sum for which the acceptance was given as between himself and the drawer (d). If the sum stated in words in the body of the bill or note differs from that specified in figures in the margin, the former is the sum recoverable and not the latter (e).

In a bill or note payable by instalments, if the instrument contain a clause, that on failure of payment of any one instalment the whole shall become due, the holder on the non-payment

(a) 24 & 25 Vict. c. 43.

(b) Statute 1681, c. 20, as to foreign bills; and Statute 1696, c. 36, as to inland bills; and further extended by 12 Geo. 3, c. 72. Sce Report of Royal Commissioners on the assimilation of Mercantile Laws, 1855.

(c) Wiffen v. Roberts, 1 Esp. 261;

Walwyn v. St. Quintin, 1 B. P. 658;
Johnson v. Kennion, 2 Wils. 262.

(d) Darrell v. Williams, 2 Stark. 166; Barber v. Backhouse, Peake, 61; Reid v. Furnival, 1 Cr. & M. 538.

(e) Saunderson v. Piper, 5 Bing. N.

C. 425.