Intimated bill carries, as assignment, In one case (a), verbal intimation of a draft was held sufficient in a Intimation of the bill to the drawee, when fully proved, completes the assignment (ƒ). But, 1st, A bill so drawn can only carry money belonging to the drawer' in the hands of the drawee, not money in the hands of bankers at whose house the bill is made payable (g). (a) Fairholm v. Gordon, 1 Feb. 1724, M. 1462. In Hill v. Lindsay, 12 Nov. 1847, 10 D. 78, an assignation of shares in a company was held sufficiently intimated, in a question between the trustee for the granter's creditors and the grantee, by the grantee having attended a meeting of shareholders and produced his title. (b) Watt's Trs. v. Pinkney, 21 Dec. 1853, 16 D. 279. (c) Carter v. M'Intosh, 20 Mar. 1862, 24 D. 925. (d) 1 Bell's Comm. 398. (e) Cullen, 18 June 1833, 11 S. D. B. 733. (f) Such is the law regarding the effect of presentment in Scotland. It occurred to the author in consultation, whether the same effect would follow from presentment of a bill in England, to carry the drawer's funds there in the hands of the drawee; and he had reason to believe that presentment of a bill in England to the drawee would not have this effect. But this was a point of English law on which he did not hazard an opinion. (g) This was decided in Macleod v. 2dly, Such a bill carries only money, not other effects belonging to the drawer in the drawee's hands. It has been held (a), that an inland precept, whereby the drawer desired his correspondent to account to a third party for a quantity of meal and iron belonging to him, is only an ordinary assignation, in competition with an arrestment of the same effects. In a much stronger case (b), of a draft for money which had been protested by the payee for non-acceptance, and was valid as a bill, it was, notwithstanding, found not to carry the drawer's effects in the drawee's hands in competition with a posterior arrestment, in respect that these effects, consisting of a cargo of fish, had not been turned into money at the date of the protest. The ground of this decision, as explained in the report, seems to have been, that a bill is only an assignation to a sum of money due by the drawee to the drawer, and that therefore it cannot take effect when there is no money due, though there should be effects for which he is accountable. It was admitted that the bill, being a continued mandate, would have ultimately given the payee a right to the money arising from the effects, if there had been no 'mid' impediment. But it did not operate as an assignment at the date of the protest, seeing the effects were not then turned into money, and, in the meantime, they were legally attached by the arrestment. These doctrines seem to follow from the nature of bills, since a bill, relating to money alone, cannot be held to imply an assignment of effects. No doubt, as it implies a continued mandate on the drawee to pay money, it will, if intimated, effect an assignment of cash in his hands when he realizes it. But this cannot happen when the effects are, in the meantime, attached by diligence. In England it is held that a payee has no direct interest even in bills or other effects deposited by the drawer with the drawee to cover his drafts, though it has been found that, should the drawee, after acceptance, and also the drawer, both become bankrupt, the payee may get payment indirectly through these effects, by the right of the acceptors or their assignees to retain Crichton, 14 Jan. 1799, Morr. 16469, with regard to the effect of a bill made payable at the house of Sir William Forbes and Company, in assigning funds in their hands belonging to the drawer. (a) Anderson v. Turnbull, 19 July 1706, Morr. 1460. See also Dixon v. Bovil, 29 July 1856, 3 M‘Q. Ap. 1. (b) Stewart and Ewing competing, 15 June 1744, Morr. 1493. or to become due to him. them till the drawer's assignees become bound to relieve them from the bill (a). But, 3dly, It has been held in Scotland (b), that a protested draft on bankers for value in account, implied an assignment to the payee of the nomen debiti, arising from another draft by the granter of the draft first mentioned on a third party, which draft had been deposited in the banker's hands to get payment, but was not yet due. 4thly, A bill protested for non-acceptance will be preferred to a posterior arrestment, and also to a trust-deed for behoof of the drawer's creditors executed before the date of the protest, but not intimated to the drawee till after it (c), when money is certainly due by the drawee to the drawer at the date of the protest, though not immediately exigible (d). "Nothing is better settled than that an assignation may competently be granted of a right not yet vested; and that the right when it emerges will be fully carried by the assignation, provided only no mid impediment has intervened. An assignation may be competently granted of a spes successionis, the most contingent of all rights, and will be effectual to the granter when the succession opens; and in this particular the assignation implied in a bill or draft protested for non-acceptance, has been held to operate like other assignations" (e). But if the drawee should, at the time of the protest, owe the drawer less than the amount of the draft, the protest will not carry even the sum due, if the payee does not intimate his willingness to take such a sum as the drawee admits, or is inclined to pay (ƒ). His protest is, in that case, a refusal to take anything unless he gets the full amount of the bill, and therefore the drawee is at liberty to dispose of the funds. (a) The point now mentioned was decided by the Lord Chancellor in ex parte Waring and ex parte Inglis, 2 Rose's B. C. 182; also Perfect, ex parte, Montagu, B. Cases, 25. (b) Macleod v. Crichton, ante, 106, note g. (c) Falconer v. Campbell, 22 Jan. 1824, 3 S. D. 630. (d) This was decided in Campbell, Thomson, and Co. v. Glass and Son, 28 May 1803, Morr. App. to Impl. Assign. p. 3. (e) Per Lord Kinloch in Carter v. M'Intosh, 20 Mar. 1862, 24 D. 925, where it was held that an unaccepted bill, drawn by beneficiaries on testamentary trustees, operated as an assignation of legacies which had not vested at the date of presentment. (f) Hogg v. Fraser, 29 Nov. 1786, Morr. 1521. SECTION IV. HOW FAR ALTERATIONS CAN BE MADE IN BILLS OR NOTES, AND 'The effect of alterations upon bills or notes is different, accord- Effect of ing to whether they are visible ex facie, or are not so visible. 'It seems to follow from the principles settled in regard to alterations in the sum, that no alteration in a bill or note will render it invalid in the hands of an onerous indorsee, if room for the alteration have been left by the drawer's carelessness, and the alteration be not visible ex facie (a).' When the alteration is visible ex facie, an indorsee has himself to blame if he takes the bill; but otherwise he has a just claim against the previous parties for giving it currency, while so carelessly written that an alteration could be made on it without attracting notice. If the Court are satisfied from looking at the bill, that there has been no alteration, they will not proceed on a mere allegation to that effect (b). But if it be offered to prove that a material alteration has been made (the offer being accompanied, if requisite, by caution or consignation), the proof may be allowed, and in England, at all events, the proof may be by parole. The effect of proving that an unseen alteration has been made, without the drawer's fault, is to vitiate the bill in the same way as if the alteration had been visible. The remedy of a holder, who has taken it innocently, is to sue for the consideration he gave against his indorser, who again sues his indorser, and so on till the party is reached who committed the laches, and who therefore ultimately suffers (c). alterations, when not visible ex facie. rial alteration 'If a bill appear, upon inspection, minute (d) or otherwise, to have Effect of matebeen altered in any material part, it does not authorize summary dili- appearing ex gence (e). Where payment of such a bill is disputed, the substance facie, (a) Ante, p. 42. (b) Dobie, 3 June 1823, 2 S. 358; Stewart v. Bird, 14 Nov. 1822, 2 S. 13. (c) Burchfield v. Moore, 6 May 1854, 23 L. J. (Q. B.) 261 (addition of place of payment after issue); and Gardner v. Walsh, 5 E. and B. 83, 24 L. J. (Q. B.) 285 (addition of a new obligant after issue). (d) The Court have sometimes remitted to engravers to say whether a bill has the appearance of being altered. Hamilton v. Kinnear, 17 June 1825, 4 S. 102. (e) M'Rostie v. Halley, 2 Mar. 1850, 12 D. 816; and other cases quoted in the chapter on Summary Diligence. at common law, and under the Stamp Acts. of the rules explained in this section, is that the holder must bring an ordinary action, and that the burden is thrown on him of proving that the alteration was made, either (1) of consent, before the issue of the bill, or (2) of consent, for the purpose of correcting an error. 'At common law, any alteration on any material part of a bill or note, made without the consent of all parties, vitiates it. The bill is no longer the contract to which the parties have agreed; and in order to prevent tampering with bills, the law has declared that it shall not be taken as evidence even of the original contract. And, it being the duty of the holder of the bill to preserve it intact, a materially altered bill is not evidence, even though the alteration should have been made by some unknown person, or even for some unknown purpose (a). It does not signify though the alteration should be to the holder's disadvantage (b). It is immaterial by what mode the alteration is carried out, whether by erasure (c), by superinduction (d), or (where no improper blank has been left) by interpolation (e); and, though it is believed not to be uncommon to do so, it is important to note that to alter a lithographed form is just as much a vitiation as to alter manuscript (ƒ). 'At common law, a bill might be altered at any time, if consent of all parties were obtained. The effect of the Stamp Acts is to limit the time for alterations to the time before issue (g). As soon as the document has been issued completed in the form intended by the parties, the stamp has been exhausted; and as any alteration after that comes virtually to be the making of a new contract, a new stamp is required. Of course this rule does not apply to the mere correction of an error made in reducing the original agreement to writing (h). 'In the application of the preceding principles, various questions may arise. It may be disputed, (1) whether the alteration was ma (a) Master v. Miller, 4 T. R. 320, 1 Ross, L. C. 667; Murchie v. Macfarlane, 1 July 1796, M. 1458. (b) Mitchell v. Stewart, 9 July 1819, H. 78. (c) Armstrong v. Wilson, 2 June 1842, 4 D. 1347. (d) Hamilton v. Monteath, 1 Dec. 1824, 3 S. 345. (e) Watson v. Thomson, 27 June 1798, H. 42. (f) M'Cubbin v. Turnbull, 28 June 1850, 12 D. 1123. (g) Bowman v. Nichol, 5 T. R. 547, 1 Ross, L. C. 698; Cardwell v. Martin, 9 East, 190; Bathe v. Taylor, 15 East, 412; Home v. Purves, 7 July 1836, 14 S. 898. (h) Whitehead v. Henderson, 19 Feb. 1836, 14 S. 544; and other cases quoted, p. 114. |