CT. OF APP.].

Wakely v. Triumph Cycle Company Limited (130 L. T. Rep. 269; (1924) 1 K. B. 214) followed.

Quære, the effect of an application for a certificate under Order LXI., r. 7.

APPLICATION ex parte by way of appeal from a decision of the judge in chambers affirming an order of the master who had refused to allow a certificate of a judgment obtained in this country to be issued under the Judgments Extension Act 1868 for registration in the High Court of the Irish Free State.

On the 31st Jan. 1922 the plaintiff, who was a cinematograph film dealer, residing at 15, Melcombe-court, Dorset-square, London, N.W.1, obtained judgment for 431. and 6l. 9s. 6d. costs upon a claim for money lent to the defendant, who was a cinematograph theatre manager. Judgment had been obtained in default of appearance after substituted service of the writ. The defendant's last known place of abode or business was the European Motion Picture Company Limited, No. 2, Burgh-quay, Irish Free State.

The affidavit in support of the application was endorsed "Affidavit of certificate under Judgments Extension Act 1868," and the proposed form of certificate purported to be presented for registration under the Judgments Extension Act 1868."

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Master Whately refused the application upon the ground that Wakely v. Triumph Cycle Company Limited (130 L. T. Rep. 269; (1924) 1 K. B. 214) had decided that the Judgments Extension Act 1868 no longer applied to Southern Ireland.

The master's decision having been affirmed by the learned judge at chambers, the applicant now appealed to the Court of Appeal.

The rules of the Supreme Court provide : Order LXI., r. 7. All copies, certificates, and other documents appearing to be sealed with a seal of the Central Office shall be presumed to be office copies or certificates or other documents issued from the Central Office, or if duly stamped may be received in evidence, and no signature or other formality, excepting the sealing with a seal of the Central Office, shall be required for the authentification of any such copy, certificate, or other document.

J. D. Casswell for the appellant.

BANKES, L.J.-This is an appeal from a decision of the learned judge in chambers affirming the decision of the master, who had refused to make an order upon an application for a certificate under sect. 1 of the Judgments Extension Act 1868 of a judgment obtained in this country. The application was based upon the ground that that Act was still applicable to Southern Ireland. Now it has been decided by the Court of Appeal in Wakely v. Triumph Cycle Company Limited (sup.) that, having regard to the legislation in reference to Southern Ireland and the Acts done thereunder, the Judgments Extension Act 1868 has ceased to apply to that part of Ireland. That decision is binding upon us, and so long as it stands we

[CT. OF APP.

are not in a position to make an order upon the footing that that decision was wrong. The decisions of the master and of the learned judge are, therefore, quite right. But then it is said that it is still open to the master or judge to grant a certificate under the provisions of Order LXI., r. 7. That may be so, but, in my opinion, a certificate so issued does not derive any effect from any application of the Judgments Extension Act 1868 to Southern Ireland. I think that in any fresh application now made it should be made plain that the application was merely for a certificate under Order LXI., r. 7, and that it should contain no statement by affidavit or indorsement or otherwise to the effect that it is made under the Judgments Extension Act. Having regard to the Irish decision in Gieves v. O'Conor (1924, 2 I. R. 182), to which our attention has been called, I think it may be that if a mere certificate under Order LXI. is presented to the courts of the Free State, they will give effect to it. They are not compelled to do so; it is entirely a matter for their discretion. It seems to me that there is nothing to prevent the plaintiff from making a further application for such a certificate, for what it is worth. In my opinion, the present application must be dismissed upon the ground that the Judgments Extension Act no longer applies to the Free State.

SCRUTTON, L.J.-I agree.

SARGANT, L.J.-I agree. I only wish to add this, that upon any new application the plaintiff ought not to use the affidavits he used for this application, because it shows that it was made under the Judgments Extension Act.

Application dismissed. Solicitors: Savage, Cooper, and Wright.

Friday, June 19.

(Before BANKES, SCRUTTON, and SARGANT, L.JJ.)

ELLIOTT V. BAX-IRONSIDE AND ANOTHER. (a) APPEAL FROM THE KING'S BENCH DIVISION.

Bill of exchange-Company-Acceptance and indorsement by directors of company-Liability of directors.

The Bills of Exchange Act 1882 (45 & 46 Vict c. 61) provides, by sect. 26, sub-sect. 2: In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instrument shall be adopted." A bill of exchange addressed to a limited company was accepted by the defendants: "Accepted payable at the W. Bank, B. I. and R. M. directors, Fashions Fair Exhibitions, Ltd," and at the request of the drawer it was endorsed by the same two directors as follows: Fashions Fair Exhibitions, Ltd., B. I. and R. M. (a) Reported by EDWARD J. M. CHAPLIN, Esq., Barrister-atLaw.

CT. OF APP.]

Held, (1) that the defendants were personally liable as indorsers; (2) that the construction that the signatures were the personal signatures of the directors was the one which was most favourable to the validity of the instrument in the hands of a holder, within the meaning of sect. 26, sub-sect. 2, of the Bills of Exchange Act 1882, having regard to the fact that the company were liable on the acceptance; and (3) (Sargant, L.J. doubting) that it was permissible to take into consideration the circumstances under which the indorsement was made. Decision of Greer, J. affirmed.

APPEAL from a decision of Greer, J. sitting without a jury.

The defendants, Sir Henry Bax-Ironside and R. A. Mason, were directors of a company known as Fashions Fair Exhibitions Limited which was formed with a capital of 4001. for the purpose of holding a fashions exhibition at the White City, Shepherd's Bush. Mason besides being director was also managing director of the company. In Jan. 1924 the company entered into an agreement with the plaintiff to erect for the purposes of the exhibition certain stalls, show-stands, and mannequins' dressing rooms at a cost of 27507. Of this amount 2000l. was to be paid by two bills of exchange for 1000l. each, and Sir H. BaxIronside and Mason were expressly authorised by a minute of a board meeting of the company dated the 31st Jan. to accept the two bills on behalf of the company. The plaintiff not being satisfied with the liability of the company by itself wrote on the 8th Feb. to the defendant Mason setting out the terms of the contract and stating with reference to the two bills of exchange : "These drafts are to be indorsed by your company's directors on the back." In his reply to the plaintiff's letter of the same date Mason added: "I enclose herewith two drafts for 10001. each, payable on the 4th and 14th March respectively, duly indorsed by two directors of the company as requested by you." No express authority had been given by the company to the defendants to indorse the bills on their behalf in addition to accepting them. The form of acceptance was in these terms: Accepted payable at the Westminster Bank Ltd., Piccadilly Branch, H. O. Bax-Ironside, Ronald A. Mason, directors, Fashions Fair Exhibitions, Limited." The indorsement was : "Harold H. Elliott, Fashions Fair Exhibitions, Ltd., H. O. Bax-Ironside, Ronald A. Mason, directors." In the case of the acceptance the name of the company was in writing, but in the case of the indorsement it was affixed by a rubber stamp. An action was brought against the defendants as indorsers of

[CT. OF APP.

one of the bills. The defendants pleaded that the indorsement was that of the company, and not of the directors personally. In his evidence Sir H. Bax-Ironside said that he had no intention of rendering himself personally liable on the bill but that he had simply signed on the back with the idea of guaranteeing that the company would pay the bill. The defendant Mason admitted that he knew that the plaintiff required the indorsement to enable him to discount the bill but that he (Mason) did not intend by his signature of the indorsement to guarantee payment of the bill when due. And it was contended on behalf of the defendants that the intention of the parties must be gathered from the terms of the document, that evidence as to what had passed between them was inadmissible, and that the indorsement could not be treated as binding the defendants personally. Greer, J. held that as the plaintiff wanted a better security than that of the company by stipulating for the personal indorsement of the defendants, the indorsement must be treated as being the personal indorsement of the defendants, although they had signed as directors of the company.

Judgment having been given for the plaintiff the defendants appealed.

Schiller, K.C. and Willoughby Jardine for the appellants.

Norman Birkett, K.C. and F. A. Holt for the respondent were not called upon.

BANKES, L.J.-This is an appeal from a judgment of Greer, J. and it raises a question as to the construction which is to be put upon a bill of exchange.

as

The case of the plaintiff is that he is entitled to sue these defendants, on the ground that they made themselves personally liable indorsers of the bill. The defendants' case is : Having regard to the form in which our signatures were affixed or annexed to or placed upon that document, upon a true construction of the document we are not personally responsible, because the signatures which we placed upon the document were merely the signatures of the agents for and on behalf of the company of which we were directors as principals. I ought to add that both these gentlemen were directors of a limited liability company called Fashions Fair Exhibitions Limited, and the form of the indorsement is this: The name of the company appears upon the back of the bill in the form of a rubber stamp, and underneath there is written the name of each of these two defendants, bracketed together, followed by the word "Directors."

I have listened to Mr. Schiller's argument carefully and I have considered the authorities to which he has referred me, but, speaking for myself, I think there is nothing in the form of the signatures on the back of the bill which is conclusive as a matter of law that the signatures are" for and on behalf of the company." Of course, if counsel could establish that, there would have been an end of the case, and there are no doubt cases in which a signature

CT. OF APP.]

But here there was the mere statement of the names plus the fact that they are the directors. It seems to me that when signatures appear upon a document, bill of exchange, or promissory note, in that form, so far as there is any authority, the authority favours the view that the word" directors" is a word of description merely, and I think that it might be almost enough to rest the decision in this case upon Cockburn, C.J.'s statement of the law in Dutton v. Marsh and others (24 L. T. Rep. 470 ; L. Rep. 6 Q. B. 361).

It is quite true that in that case the form of the document was this: "We, the Directors of the Isle of Man Slate and Flag Company Limited do promise to pay John Dutton the sum of . Then followed four signatures. The Chief Justice, after pointing out that a signature may be a signature as agent on behalf of the company or it may be the signature of individuals, and you decide that according as you think the document indicated that the words are words of description merely, or words indicating a position of agency, says (L. Rep. 6 Q. B., at p. 364): "If, therefore, in this case it had simply stood that the defendants, described as directors, but without saying on behalf of the company' signed the promissory note, it is clear they would have been personally liable, and could not be considered as binding the company."

But I do not rest my judgment upon that, because, no doubt, there are a number of cases in the books, all of which depend upon their own particular facts, and in some of which it may be said that Cockburn, C.J., in laying down the rule as he did there, was perhaps laying it down without sufficient elasticity. I prefer to rest my judgment upon the view taken by Greer, J. The view he takes is this. He starts by saying that there is nothing in the form of the signature which is conclusive as a matter of law that it is the signature of the company, and then he says that assuming the view is accepted that the signatures on the face of the document and on the back of the document are both signatures of the company, such a construction will render the signatures on the back of the document of practically no value whatever; it might just as well not have been there.

I think, taking that view and applying that view, even accepting Mr. Schiller's argument that that view assumes a patent ambiguity, still that does not prevent the operation of sub-sect. 2 of sect. 26 of the Bills of Exchange Act 1882, which says: "In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instrument shall be adopted."

I cannot doubt that, applying the subsection to this case, the construction that the signature

[CT. OF APP.

on the back of the bill is the signature of the directors is the one most favourable to the validity of the instrument, into whosoever's hands it comes. But I go farther, and I think

that in a case such as this it is admissible to take into consideration the circumstances existing at the time the document came into existence for the purpose of construing the language which is used by the parties. I think that Macdonald v. Whitfield (49 L. T. Rep. 446 ; 8 App. Cas. 733) and Gerald McDonald and Co. v. Nash and Co. (131 L. T. Rep. 428; (1924) A. C. 625) are both illustrations of cases where in the House of Lords the principle has been recognised that in a case such as this it is permissible to have regard to the surrounding circumstances in order to interpret the language used, not, of course, for the purpose of contradicting the instrument, but for the purpose of interpreting it.

What were the circumstances existing at the time? It is manifest that so far as Mr. Elliott is concerned he would only enter into this transaction at all upon the terms, which he made perfectly plain in writing, that the drafts were to be indorsed by your company's directors on the back. It is true that there is no evidence that that was communicated to one of these two defendants, although it was communicated to the other, but what impresses me more than anything is the fact that the signature of the directors on the back of the document, being required in order to establish personal liability against them, the person who places or procures the signatures being placed upon the front and upon the back of the document adopts two different forms which the signatures shall take. I do not attach so much importance as to whether the name of the company appears above or below that of the directors that may be because of the position occupied upon the bill by the signature itselfbut I do attach great importance to the distinction between the use of ink in the one case and the use of the stamp in the other, accompanied as it was by one of the defendants putting himself to a considerable amount of trouble in order to bring about that difference. When you couple that with the evidence of the two defendants, and of Sir H. Bax-Ironside particularly, it does seem to me plain that although they adopted the construction and the expression Oh, we were not to be held personally liable "--which is very often adopted in the sense that ultimately, if anybody was called upon to pay, the money would not come out of their pockets because somebody else would provide it yet they quite clearly recognised that they were putting their names on the bill for the purpose of guaranteeing that the company should perform its obligation and pay the bill when it became due.

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For any one of those three reasons I think that the judgment of the learned judge can be supported, and I think it is entirely in accordance with the facts and the law. I think that the appeal fails and must be dismissed with costs.

CT. OF APP.]

SCRUTTON, L.J.-I have come to the same conclusion.

When a person puts his name on a bill with an addition, there are two classes of cases into which the addition may fall. The addition may be such as to show that he is contracting as agent for another, putting his name on the bill as agent for another, excluding any personal liability of his own. When a man signs For and on behalf of Jones as agent he is clearly not undertaking any personal liability of his own as a principal, but is purporting to make Jones liable.

On the other hand, there is a class of case where the man puts after his signature a description for the purpose of showing who he is and how he comes to sign: "So and so, Churchwarden," it was in one of the cases where there was a question about a parish, and where it was held that the fact that the person who put his name upon the document described himself as churchwarden did not mean that he was signing as agent for the parish, and had no personal liability, but merely was an explanation of how he came to put his name on the document.

In the early history of the cases Lord Ellenborough, in a picturesque passage in Leadbitter v. Farrow (5 M. & S. 345, at p. 349), gave his judgment in this way: "Is it not a universal rule that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another, or by procuration of another, which are words of exclusion? Unless he says plainly, I am the mere scribe,' he becomes liable."

That is put in a less picturesque way, perhaps, by Cockburn, C.J. in the case of Dutton v. Marsh and others (sup.) to which my Lord has referred :

"The effect of the authorities is clearly this, that where parties in making a promissory note or accepting a bill describe themselves as directors, or by any similar form of description but do not state on the face of the document that it is on account or on behalf of those whom they might otherwise be considered as representing if they merely describe themselves as directors, but do not state that they are acting on behalf of the company-they are individually liable. But, on the other hand, if they state they are signing the note or the acceptance on account of or on behalf of some company or body of whom they are the directors and the representatives, in that case, as the case of Lindus v. Melrose and others (31 L. T. Rep. (O. S.) 36; (3 H. & N. 177) fully establishes, they do not make themselves liable when they sign their names, but are taken to have been acting for the company, as the statement on the face of the document represented."

Those were pre-codification cases, and when Parliament came to codify and to some extent alter the law they codified it in this way in sect. 26 of the Bills of Exchange Act 1882: "(1) Where a person signs a bill as drawer

[CT. OF APP.

indorser, or acceptor, and adds words to his signature, indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon ; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability. (2) In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instrument shall be adopted."

You

I look at this document. It is accepted by two directors, with the name of the company, and I find on the back an indorsement of the names of the same two directors describing themselves as directors, with a stamp of the name of the company above. If both these indorsements are to be read in the same way, the second indorsement is valueless. add nothing whatever to the bill by its being indorsed by a man who is already an acceptor. He is adding no value to the bill at all. He has already accepted, and adds no additional value to the bill by putting an indorsement on. If, on the other hand, the company having accepted a bill, two directors put their names on as indorsers in order to give their personal security, you do add to the bill, you give an additional commercial value to the bill, and in one's experience it is a very frequent commercial document that you do find a bill accepted by a company and indorsed by directors. Therefore, working out sect. 26 of the Bills of Exchange Act 1882 I find a document with a signature on it which may mean either, and I construe it in the way most favourable to the validity of the instrument.

But I go a little farther than that. According to the somewhat technical rules as laid down in Taylor on Evidence, sect. 1148, the rule does not restrict the court to the perusal of a certain instrument or paper. All contemporaneous writings relating to the same subject matter are admissible in evidence, provided only that they be of equal solemnity with the principal document and no oral testimony be required for the purpose of connecting them therewith.

I find a document signed by one of the defendants answering a letter from Mr. Elliott : "I enclose herewith two drafts for 10007. each, payable on the 4th and 14th March (which fits in with the document I have under consideration)" duly signed by two directors of the company as requested by you." Turning to see what that " as requested by you" is in the letter which is answered, I find "These drafts are to be indorsed by your company's directors on the back," and I think I am entitled to take that into account as confirming the view I have arrived at, that the company's directors were undertaking personal liability when they put those two signatures on the back. And if it is allowable to go farther (I do not know whether it is or not), it is eminently satisfactory to find that Sir

APP.]

H. Bax-Ironside himself thought he was incurring a liability by putting his signature on the back because he thought he was guaranteeing the bill.

For these reasons, and especially for the first two, I agree with the judgment of Greer, J., and I also agree with the way in which he puts his judgment, putting liability on the two defendants.

SARGANT, L.J.-I am of the same opinion. I prefer to found my judgment merely on the contents of this particular bill. With regard to the question how far oral evidence is admissable to show whether these two persons were signing as directors or in their individual capacity, I entertain some doubt. It seems to me that Macdonald v. Whitfield (sup.) does not really go as far as that, but only goes as far as admissibility of oral evidence as to determining the relationships as between the successive indorsers, or the acceptor and the indorser of the bill. As regards Gerald McDonald and Co. v. Nash and Co. (sup.), a case in the House of Lords last year, I feel that Mr. Schiller and my two brethren were so very familiar with that case that they spoke to each other in a kind of mental shorthand which was too quick for me altogether, and I have not been able to get hold of all the implications in that rather complicated case.

But, looking at this instrument itself, I think that the decision of the learned judge and the grounds upon which he rested it are right. It is quite clear here, where the signature by way of acceptance is to be considered, that with regard to that signature the directors are signing as on behalf of the company, and not in their individual capacity, for this reason that the bill is directed to Messrs. Fashions Fair Exhibitions Limited, showing that they were the persons who were intended to accept the bill. Therefore, when you get the words" 'H. O. Bax-Ironside and Ronald A. Mason, Fashion Fair Exhibitions Limited," preceded by the words accepted payable, Westminster Bank," it is perfectly clear to my mind that that is an acceptance by those individuals in their representative capacity and as "on behalf of the company," and is in no way referable to their individual capacity.

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That being so, there is to be found on the back of the bill this indorsement: "Fashions Fair Exhibitions Limited, H. O. Bax-Ironside, Ronald A. Mason," and that form of words, for the reason I have given, is not to be treated as being precisely identical with the form of words in which the bill is accepted. Looking at this indorsement, it seems to me that you have to consider whether it falls within the two classes of case dealt with by Cockburn, C.J. in the case of Dutton v. Marsh and others (sup.). In my judgment, it falls between the two classes, and it seems to me impossible to say, looking at that indorsement alone, whether it is an indorsement as "on behalf of the company or an indorsement as on behalf of the individuals.

[CHAN.

I go a little farther, and I say this: that if that indorsement stood alone in those terms, with nothing else to lead me to the contrary conclusion, I should be rather inclined to think that it was an indorsement as on behalf of the company and not an indorsement as on behalf of the individual directors. But when you find that it is an indorsement of an instrument on the face of which there is an already existing liability on behalf of the company to which no addition would be made by reading the indorsement as creating an equivalent liability on the part of the company, I think that that is sufficient to determine the interpretation of those words of indorsement and to show that they are words of indorsement intended to create a further liability which can only be effective by reading them as an indorsement creating individual liability, and for that purpose I agree with what has been said as to the effect of sect. 26, sub-sects. (1) and (2), of the Bills of Exchange Act 1882. Appeal dismissed.

Solicitors for the appellants, Sutton, Ommanney, and Oliver.

Solicitors for the respondent, Cohen, Dunn, and Co.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.

June 9, 10, 11, and 29. (Before RUSSELL, J.)

EAST RIDING YORKSHIRE COUNTY COUNCIL U. SELBY BRIDGE PROPRIETORS. (a)

Way Highway Ferry· Bridge substituted Bridge and approaches vested in proprietors of bridge-Approaches part of highway —Right of owners of land adjoining approaches to use without crossing bridge.

The approaches to Selby Bridge, over the River · Ouse became, under the Selby Bridge Act 1791, vested in the defendants who were also the owners of the bridge, which in that year, or shortly afterwards, was substituted for a ferry. The plaintiffs were a County Council who were the owners of a school house adjoining the approach. The defendants claimed that the public road to York over the bridge, so far as it comprised the approach to the bridge, was their private property, and that they had the right to exclude from access to it all persons except such as went thereon with the intent of crossing the River Ouse and paying toll. Held, that as the Selby Bridge Act substituted for the old highway, consisting of the approaches to the ferry, plus the passage over the river. a highway consisting of the approaches to the bridge plus the bridge, and the old approaches to the ferry were highways to which adjoining (a) Reported by GEOFFREY P. LANGWORTHY, Esq., Barristerat-Law.