Sir W. J. C.J.-I cannot see that there is any evidence whatever to be presented to the jury that Wallace intended to be a maker of these notes. He was to become surety as an indorser, and the notes would have been drawn in the usual form payable to his order but for the interposition of Mr. Walker himself, who would not have them drawn in that way but insisted on having them on the form used by the company. I do not say that the plaintiffs could not have maintained an action if they had given due notice of dishonour, but however that may be, as they have chosen to proceed without it, and as I cannot see that Wallace ever intended to be a maker, the plaintiffs' action fails and this appeal must be dismissed. J.-I am of opinion upon authority of Ex parte Yates and Steele v. McKinlay that the respondent might have been made liable as an indorser of the notes if proper notice of dishonour had been given to him. As no such notice was, however, given he was discharged.
The parol evidence was not, I think, admissible, though if taken into consideration it would have shewn that the respondent never intended to come under any other liability than that of an indorser. Steele v. McKinlay (6) is a strong authority against the admissibility of this parol evidence. The want of a memorandum in writing sufficient to satisfy the Statute of Frauds would have been a defence available to the defendant if it had been sought to charge him as a guarantor. In the case of Singer v. Elliott (1) cited in the argument, the defendant was s held liable as a guarantor upon a letter written and signed by him after he had indorsed the bill.
As the law now stands since the Dominion Bills of Exchange Act, 1890, it is clear that under section the respondent would have been liable as indorser, but only as indorser.
It has been frequently said as regards the English Act (Bills of Exchange Act, 1882), that it was not intended by it to enact new law but merely to declare and codify the law as it stood when the act was passed.
Section 56 of the English act is identical in words with the same section of our act. This seems to me conclusive.
The appeal should be dismissed with costs.
J. concurred.
GWYNNE J.-If the question had been whether there was evidence to go to a jury that the defendant signed as an indorser, if he had been sued as such, the answer must have been that there was abundant evidence. But the defendant was sued as maker, and I concur that ,there was no evidence to go to the jury in support of the issue upon the plea of non fecit, and that therefore this appeal must be dismissed and the nonsuit maintained.
J.-After hearing all that Mr. Earle has been able in his very full examination of the case to urge to the contrary, the evidence seems-to me consistently to show that Wallace was to be indorser of the notes, and I find no evidence that he was to be maker, or that he was understood by Walker, or represented himself, to be signing otherwise than as indorser. That is the view of two of the four learned judges who heard the case in the court below, and unless I misunderstand the opinions expressed by the learned Chief Justice and Mr. Justice Tuck, who took a different view, they would have agreed with the other members of the court if they had not been impressed by the idea that unless Wallace was liable on the notes as maker he was *not liable at all. Under that idea they seem to have treated his defence as evidence of a dishonest contrivance from the imputation of which they shielded him by holding that, because there was proof of his intention to be surety for the purchaser of the goods, there was evidence of his being liable as joint maker of the. notes.
I am not able to concur in those views.
I ,ee nothing to have prevented the plaintiffs as payees of the notes indorsing them, expressing the indorsement to be without recourse if they chose to do so though under the circumstances that would not have been essential, thus creating in Wallace the legal character of indorsee from them and indorser to them
I am not aware that the legal right of parties in the position of the plaintiffs to do this was ever questioned.
It was not questioned in the case of
Bell v. Moffatt (2) on which Mr. Earle relied so much.
We find from the report of that case in P. & B.
that in one count the declaration charged that Fulton made his note payable to Bell or order, and that Bell indorsed the note to the defendant who indorsed it to the plaintiff. A plea that Bell the payee and Bell the plaintiff were the same person was met by a replication that Bell the plaintiff indorsed the note to the defendant without recourse, and that replication was held good on demurrer as is stated by Wetmore J. at p. 267 of the report. The report relates to another replication, pleaded perhaps to meet the facts more fully, by which the plaintiff stated his title through an intermediate indorsement and not as indorsee direct from Bell. That replication was properly held bad as a departure from the declaration.
Mr. Justice Wetmore referred to a number of cases, one of which, Smith v. Marsack (1) was a case of demurr'er to a replication as a departure, which pleaded the same essential facts which would exist if the plaintiffs had in this case indorsed the notes without adding the words " without recourse," but relying on the fact that the defendant had indorsed for the purpose of being surety to them for the maker of the note. The replication in Smith v. Marsack (1) was held good.
No question of circuity of action could arise here unless the defendant would have had recourse against the plaintiffs as prior parties to the note, but indorsing as he did as surety to the plaintiffs he had no such recourse against them. The report of Bell v. Moffatt in 4 P. & B. and the case of Piers v. Hall bear on the present discussion in the way in which they were used by Mr. Earle as showing that a man may write his name on the back of a note and yet, be liable as maker of the note. That is a question of fact more than of law. The evidence in those cases proved the intention to be maker while here the whole evidence is that he was to be indorser.