seen in his possession in the month of August. The fact of the presentment being postponed until the 6th of October was no proof of fraud on the plaintiff's part; neither was the fact of the presentment having been postponed at the instance of the directors. A check may be presented at any time, provided the drawer sustains no loss from the delay in presenting it: Serle v. Norton, 2 M. & Rob. 401, Alexander v. Burchfield, 3 Scott, N. R. 555, 1 Carr. & M. 75 (E. C. L. R. vol. 41), Robinson v. Hawksford, 9 Q. B. 52 (E. C. L. R. vol. 58).

M. D. Hill (with whom was Wordsworth), contrà.(a)—The main question is whether this was the check of *the company. A sub

*823] ordinate question is, whether, following the rule as to bills of

exchange and promissory notes, the plaintiff is not precluded from recovering, on the ground that the check was received by him so long after its date, and its presentment postponed for an unreasonable period.

1. To entitle the three persons who signed this check to bind the company, they must have had authority to draw checks on behalf of the company, and they must have executed that authority. It may be conceded that the directors had authority generally to draw checks for the purposes of the company. But, had these three persons authority to draw this check? The mode in which, and the exceptions subject to which, the powers of the company are to be exercised by the directors, are defined by ss. 90 and 91 of the 8 & 9 Vict. c. 16; and the 97th section regulates the making of contracts on behalf of the company. The facts disclosed by the case show that the drawing of this check was the result of a gross conspiracy. It does not appear when the date stamp was put upon the check. But, assuming that it was there when the signatures were attached to the instrument, it makes no difference. In Bult v. Morrell, 12 Ad. & E. 745 (E. C. L. R. vol. 40), the plaintiffs declared' on a bill of exchange by R. P., directed to A., B., C., D., E., and F., and accepted by them. Pleas by A., B., and

(a) The points marked for argument on the part of the defendants were as follows: "1. That the defendants are not the makers of the check upon which the plaintiff is suing: "2. That the check not appearing on its face to have been made either by the defendants or on their behalf, the defendants cannot in law be liable as the makers of it, whether it was in fact made on their behalf and by their authority or not:

"3. That, even if it were open to the plaintiff to show that the check was in fact made on behalf of the defendants and by their authority, so as to render them liable as the makers, still there is nothing in the special case to prove that the parties whose names appear on the check as the makers had the authority of the defendants to make it on their behalf; but that, on the contrary, it distinctly appears that they had not such authority, the check having been made for a purpose for which the directors had no authority to make it, except with the sanction of a general meeting of the company, which was never obtained:

"4. That the check was not presented for payment within a reasonable time: "5. That the defendants had not due notice of the non-payment of the check:

"6. That the check was made and delivered to Daniel Turton Johnson by the directors of the company under the circumstances and in the manner stated in the fourth, fifth, sixth, and seventh pleas; by reason whereof the said Daniel Turton Johnson could not himself have sued the defendants on the said check; and that the plaintiff, for one or other of the causes respectively stated in those pleas, is equally precluded from suing thereon."

[*824

C.,-first, that R. P. did not make the bill in manner and form, &c.,secondly, that A., B., and C. did not *accept in manner and form, &c. Issues thereon. Judgment by default against D., E., and F. The bill produced at the trial was drawn upon the directors of the Imperial Salt and Alkali Company, and accepted for the company" by D. and E., signing as directors. F. signed his name with theirs as "manager." All the defendants were shareholders, and all but F. were directors. The jury found that F., as manager, was not an acceptor of the bill. It was not put to them to say (nor did counsel desire that they should be asked) whether or not D. and E. had authority to bind the company by acceptances. A verdict having been found for the plaintiffs, it was held, on a motion to enter a nonsuit, that F. was not in point of law liable as an acceptor, either by his having actually signed his name with those of D. and E., or by their having accepted the bill as directors of a company in which he held shares; and that the plaintiff had failed on both issues. In Beckham v. Knight, 4 N. C. 243 (E. C. L. R. vol. 33), 5 Scott, 619, (a) this court held that, although a dormant partner may be liable upon an implied contract entered into for the joint and equal benefit of the whole firm, the same liability does not arise upon an express contract. The Court of Exchequer, however, held otherwise in Beckham v. Drake, 9 M. & W. 79,† and distinguished the case from the cases of bills of exchange and promissory notes. No extrinsic evidence is admissible for the purpose of adding a party to a bill of exchange: Emly v. Lye, 5 East, 7. The parties who signed the check may be liable personally,-Thomas v. Bishop, 2 Stra. 955, Siffkin v. Walker, 2 Campb. 308, Leadbitter v. Farrow, 5 M. & Selw. 345,-but they clearly had no power to *bind the com[*825 pany. The fact of the special act being declared to be a "public act," does not make it notice to all the world that the persons therein named as directors are so: Brett v. Beales, M. & M. 421 (E. C. L. R. vol. 22). And, supposing it were notice, of what particular fact is it notice? That the directors had power to draw checks on behalf and for the purposes of the company; not that this was a check drawn within the scope of their authority. Then, this check having been taken after its maturity,-for, a check is like a bill payable at sight,-the plaintiff took it subject to its equities in the hands of the person from whom he received it: Bayley on Bills, 6th edit. 165, 166.

Byles, Serjt., in reply.-No doubt the directors were guilty of a gross fraud in misappropriating the funds of the company as they did: but that will not affect the title of the plaintiff, a bona fide holder for value. They are general agents to do all acts connected with the business of the company: and, in the absence of anything to show they had a more limited authority than they assumed to exercise, the plaintiff was fairly entitled to suppose that they had not exceeded it: Story (a) And see Beckham v. Knight, 1 Scott, N. R. 675, 1 M. & G. 738 (E. C. L. R. vol. 39).

on Agency, §§ 17, 18, 19. The circumstance of the check having been taken after, its date makes no difference. The holder is not bound to present it immediately. [CRESSWELL, J.-In Down v. Halling, 4 B. & C. 330 (E. C. L. R. vol. 10), 6 D. & R. 455 (E. C. L. R. vol. 16), HOLROYD, J., says: "A check is payable immediately, and the holder of it keeps it at his peril, and a person taking it after it is due, takes it also at his peril. Now, in this case, the check had been due five days at the time when it was taken by the defendants. That was a circumstance which ought to have excited their suspicion. I think that when the *defendants took the check, more than a reasonable *826] time for presenting it for payment had elapsed, and therefore they took it at their peril."] That was the case of a lost check; and it is not consistent with the subsequent case of Rothschild v. Corney, 9 B. & C. 388 (E. C. L. R. vol. 17). [MAULE, J.-I think the two cases may be reconciled. There is no such strict rule of law as to checks, that they must be presented promptly. But, where a reasonable time has passed, they stand in this respect upon the same footing as bills of exchange.]

MAULE, J.(a)-In this case some questions of law and of fact are submitted to the court, and there are several issues joined between the parties but in the view the court is disposed to take of the case, it will not be necessary to enter very minutely into all of them. The first issue is, whether the check declared on was made by the defendants. In order to prove the affirmative of that issue, a paper is produced, signed by three persons who are proved to have been directors of the company, and countersigned by a person who is described as, and who we are told was, the secretary of the company. There was a written date upon the paper, " London, August 13, 1847," and also a stamp which was impressed upon it opposite the names of the three persons who appear to be the drawers, bearing in the centre the same date, August 13, 1847," and round the margin the words "Derbyshire, Staffordshire, and Worcestershire Junction Railway Company." One question is, whether that document upon the face of it purports to be the check of the company. It seems to me that it does not. It does not purport to be drawn by the company in its corporate character. The persons by whom it is drawn are, in fact, directors *827] of the *company; but they do not describe themselves as such. There is no mention whatever of the company, except on the stamp. Looking at the instrument alone, it does not profess to be a document by which the company purport to direct the bankers to pay money on their account. The directors whose names appear upon

it do order the bankers to pay the sum therein mentioned; but, without the aid of extrinsic evidence, we cannot construe the instrument as the check or order of the company. If I saw this document out of

(a) WILDE, C. J., was engaged in the Court of Criminal Appeal.

court, I should be at a loss to know the meaning of the stamp. It is not a substitute for signature, like the cross of a marksman. It is not usual or customary to sign a document in this circular form. It looks rather (if one were obliged to construe it) as if this were a document which had passed through the office of the company on such a day, and received the stamp as a mode of identifying or ear-marking it,as is usual in some offices. But, looking at it without the aid of extrinsic evidence, or conjecture, I am utterly unable to say that this document purports to be a document made by the company. Now, the evidence is, that all documents issued by the company had this stamp upon them. If so, it must intimate something different from what is suggested on the part of the plaintiff; for, it must be put upon some documents that are required to be under the common seal of the company, and therefore cannot be intended to make it an instrument binding on the company. The other evidence from which it is insisted that we are to infer that this was the check of the company, was, "that checks to the extent of fifty or sixty, drawn by three directors of the company, had been paid by the bankers on account of the company." The form of these, and by whom signed, does not appear. Even if they were in the same form, and signed by the same three directors, and countersigned by the same secretary, I do not think it [*828 would make any difference. Because the company have sanctioned the payment of some checks when satisfied of the honesty of the transaction, it by no means follows that they are bound by this confessedly dishonest and disgraceful transaction. Undoubtedly there are cases in which a principal may be bound by the acts of his agent, although he has exceeded or not properly followed his authority. But here, although the three directors who signed this check might have had authority to bind the company by contracts entered into on their behalf, they clearly had not authority to do what they have done here, viz., to cheat the company. Besides, the document does not purport to be made by any one, or by any set of persons, as agents for, or on behalf of, any one else. I therefore think the defendants are entitled to succeed upon the first issue. Probably this check may be considered as in the nature of an overdue bill, and, fraud being shown, the onus is cast upon the plaintiff of showing when he took it, and by what means he acquired title to it. It is, however, unnecessary to decide that point upon the present occasion. I think there must be judgment of nonsuit.

CRESSWELL, J.-I am of the same opinion. It appears that the parties who drew this check had no authority to do so: it was a gross fraud upon the company whose servants they were. Nor, indeed, do they upon the face of the instrument affect to bind the company. They sign the check with their own names, and do not profess to sign as agents, or on behalf of the company: and I find nothing on the stamp

to connect them with the company. The company, in fact, never had authorized any person to bind them by such an instrument. It cannot, therefore, in any shape be considered to be their check; and no per*829] son had any right to take it as an instrument issued by them. In Brooks v. Mitchell, 9 M. & W. 15, 18,† PARKE, B., says: "If a promissory note payable on demand is, after a certain time, to be treated as overdue, although payment has not been demanded, it is no longer a negotiable instrument. But a promissory note payable on demand is intended to be a continuing security. It is quite unlike the case of a check, which is intended to be presented speedily."

TALFOURD, J.—I also am of opinion that there ought to be a nonsuit in this case. It is unnecessary for us to do more than consider the first issue, for that disposes of the whole case. I am clearly of opinion that the check was not the check of the company. If I were to hazard a conjecture as to what was the intention of the three persons who signed the check, I should say that they advisedly did an act of an equivocal character, in contemplation of the hour of peril,-hoping that the checks would be paid without demur, but prepared, in the event of any inquiry arising, to say that they meant to bind themselves personally. There is no evidence that this check is drawn in a form that is either sanctioned by the company or warranted by the act of parliament. It is true, it is stated in the case that checks drawn by three directors had been paid by the bankers on account of the company. But there is no statement as to what was the form of those checks. And, supposing they were in the same form as the check in question, for anything that appears those were checks properly so called, and fairly drawn for the purposes of the company. This check, however, and those which were drawn at the same time, were not so drawn; but were drawn in fraud of the company, and to be paid out of future assets the case *in terms so finds. It appears to me, there*830] fore, that there is nothing in its form or its substance to show that this check was the check of the company. It is enough to say that the plaintiff fails upon the first issue, and consequently that a nonsuit must be entered. Judgment of nonsuit.

END OF TRINITY TERM.