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APPEAL DISMISSED.
THE BANK NOTE CASE.
TUESDAY. FEBRUARY 8, 1927.
ment in view of the fact that the note is a genuine one.
it was also argued that no offec- tive Indemnity could be given by the plaintiff to protect the defend- ant bank from having to pay a The Full Court assembled yes-second time on the nota. In my terday when judgment was given opinion no question of indemnity In the appeal of the Hongkong and arises on the facts. The missing Shanghal Bank against a judgment portions of the note consist of delivered by Mr. Justice Wood in straps of paper containing por- rospect of what has become known tions of the number and date and as the Banknote Case. It may be a few bits of the body of the note, I do not see how it can be sald recalled that the case concerned that such scraps and bits consti- the question of payment on a bank tute a note which the bank could note of $500, certain portions of under any circumstances be called which, including the number, were upon to pay. missing.
In my opinion this appeal should Sir Henry Gollan's judgment be allowed and the judgment of was that the appeal should be Mr. Justice Wood reversed. As allowed and the judgment of Mr. for costs I think they are entitled Justice Wood reversed. Mr. to costs of this appeal and in the Justice Wood's judgment was that Court below. the appeal must be dismissed with]"
costs.
The Chief Justice and that according to the provisions of the Ordinance of 1912 the appeal stund to be dismissed. Mr. Eldon Potter, for the Bank, asked his Lordship to make a stay for a fort night, pending the Bank's decision whether they would appeal to the Privy Counell.
له
The Other Judgment. Mr. Justice Wood delivered judg- ment, and said in part:
I am of the opinion that this ap- peal must be dismissed. It is with idence that I differ from my groat respect and not without dif- brother judge's judgment, which
have had the advantage of read- ing.
under the Common Law may be ap
I agree that the Enses decided
The Lord Chief Justice said in part: The principal question to be decided in this case is whether, proached only where an ambi- on the facts thereof, the note sued guity is apparent in the words of upon has been materially altered Section 64 of the Billa of Exchange so as to be avoided by reason of Ordinance 1885 (Ordinance No. 9 the disappearance of the number of 1685). My judgment in the and date of the note which were Court below, should be revised to on it when it was issued by the include a statement to this effect. defendant bank.
Two ambiguities, which concern Mr. Potter, for the defendants, this case, appear in Section Gi although submitting that it waThe first ambiguity relates, to the not necessary to put it so high fer acts or processes which by altera the purposes of his case, arguention may lead to the avoidance of that the manner of alteration was the bill. The second is inherent in immaterial; and that if u materi-the word "alteration" Itself. ally altered note is presented to the bank, payment can be lawfully and finally resisted on the "ground- that, by reason of its condition, it has become void,
Plaintiff's Negligence. There are certain respects in which the facts in the present case differ from those in Suffell v the Bank of England:
(1) The defendant bank's notes are not legal tender nor Is the bank compellable at law to issue their notes as against bullion as
The Human Agency.
The discussion whether human agency is necessary to an avoid- ine alteration is in the considera- tion of this appeal merely aca- demic. Human agency is in fact one of the features here present. I have, also, accepted the conten tion of the Appellants on this pojat without reservation.
His Lordship then went on deal with the suggestion that the language of the section itself im- plied a limitation of its scope to is the case with respect to the human agency. After dealing Bank of England.
(2) The alteration in the pre-and his interpretation of it. His with the provisions of this section, sent case was not purposely or Lordship said that the question fraudulently made, but was due whether human agency was neces the, negligence of the plaintiff, as found by the Judge at the trial sary to a material alteration of an and not questioned by her Coun-instrument had never been raised and decided, so far aa authorities sel on Appeal.
had been noticed in this appeal, with reference to a bill of ex.. change.
(3) In Suffell's case the notes remained in circulation after the fraudulent alteration, masquerad- ng as notes other than those which had been issued by the Bank of England and still pretending to be legal tender and to form part of the currency. In the present case the note sued on could not have continued to be used as currency after the treatment it had received from the plaintiff, and no attempt was in fact made to continue to use it as currency.
His Lordship said that he did not desire to amend, on the point of hu- man agency, his judgment in the Court below.
Interprétation of "Alteration.
Continuing, His Lordship said: There is one consideration only on which the decision of this appeal must uin. It is the one point ca On the facts of the ease I hold enged the correctness of the judg
which the Appellants have chal- nt on the authority of Suffell vment of the Court below. This is the Bank of England there has been an alteration in the business the interpretation of the word effect of the note in question in this "alteration" as used in Section 61 case, and that this constitutes
material alteration.
1885, and also in the rule of the of Bills of Exchange Ordinance,
Had the obliteration of the num-Common Law applied in the lead- ber and date been due to an ap-
ing cases. eident and had there been no neg-
In the judgment, here appealed Higence shown by the plaintif from 1 expressed my view 45 10-
should have held that Davidson v
Hows:
Cooper did not constrain meto; "Not every change even in a hold the note void; as it is the material matter will constitute a negligence of the plaintiff, asuterial alteration. When the ef found by the learned Judge la' the feet of an act or process is con- Court below and not questioned on sidered, the pertinent question with the Appeal, brings this case with- be "What is the instrument now?” ; in the decision of Davidson If the only fitting description is "a. Cooper and I must decide against portion of the original instru the plaintiff.
ment." no new character has su-
There is certainly authority for pervened. This instrument will the view stated by Mr. Justice Innt now operate in any new way Wood that for an alteration to be which was not contemplated when material it must be shown that the it was made." instrument produced is not the same instrument us, that executed land issued by the défendant bank;
Other Defences,
Correctly Made.
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and that as, in the present case,be an exhaustive illustration of the note sued on has not been alwhat constitutes a material altera-j tored so as to become a different tion under the Common Law. It note and is not masquerading as still appears to me to be correctly part of the currency of the Colony made. Mr. Potter for the Appel- in a new guise, it has not been avobied.
lants in the course of argument agreed with me that in none of the authorities in which a material alteration has been held to have There were other defences raised occurred is in exception to this by the defendanta to which I will statement to be found. shortly refer:"
My judgment was right if into. (1) They contended that their the meaning of the word “altera- lability is only to pay the face tion" is imported the substitution value of a note bearing a specific of one legal effect for another legal number. I see no evidence of any effect, or alas on the extended ap- lity in this case, either expressed amplified in such limitation of the bank's liabi-plication of the principle as ex-the latter word that an ambiguity or implied.
The in section 64 of Bills of Exchange (2) The defendants further al- Bank of England" (1882, 9 Q.B.D.Ordinance, 1885, arises. leged that by reason of the obli- page 655) one business effect for
No Alteration.
The halving of bank notes, n teration of the number it is not another business effect. In either His Lordship then quoted ver
practice recommended as "ex-of damage. possible to identify the note and case a now effect for an oid'effect. ious Acts and Laws bearing on the pedient in a text book of the year The "purity" of a document is so they cannot obtain from the In other words, it is right if the subject of "material alteration,"
not relative to its contents but to 1840, "Billa of Exchange," is not Colonial Government the sum of word "alteration" connotes some- and also referred to various ac
an exception to the rule in "Pigot's, its purpose and effects. In this $600 deposited in respect of the thing more than what is merely tions and judgments given in them, ease." It Blustrates the fact that,
caso the number of the note has issue of the note; and further-mechanical, and is-concerned also with regard to the material altern- so long as a document does not
not been altered, because the nate more that they will continue to be with the operative consequences of tion of the business effect of an purport to be anything but whattha now number, The dato also does not now. purpose to speak liable to pay a tax of one per cent. a mechanical process. Otherwise Instrument.
"Suffell
¿
tinguish the present case from the case of Suffell The Bank of England."
it was in its original state, it re- per annum on the value of the note the judgment cannot be supported. Concluding, His Lordship said: und that it is inequitable to pince The idea of substitution in a If it is the right view of the law mains in law unaltered and valid.
Note Still Valld. them in this position..
material alteration, which I have that a change of effect is a re- I am not satisfied that the ab-noticed and on which I rely, is to quisite in an alteration, I still The Lords decision in David sence of the number renders it im- be derived not from the word think that no alteration has oc- son V Cooper (supra) by possible for thom to obtain repay- "material" but from the word "alcurred to the bank note In this which the holder of an Instrument ment from the Colonial Govern-Iteration." It is in connection with case, and it is here that I dis-is declared responsible for pre-
serving it in its original state ap pears less harsh when his duty is Been to be to preserve it from al teration and not from every kind.
has not been altered, because the crasure of the date has not caused it to speak from a new date:'- For these reasons it seema
me that the bank note in question is still valid, and that this appeal must be dismissed with conia..