( 801 )
Present: Pereira J.
MOHAMADU v. BOWTEE.
81—C. R. Colombo, 29,763.
Promissory note—Name of maker written over the stamp—Stamp affixedat top right hand comer—Note not duly signed—Cancellation ofstamp.
Although the Bills of Exchange Act does not require a promissorynote to be signed at any particular place on the paper on whichit is written, the signature must nevertheless be so placed as togovern or authenticate every material and operative part of theinstrument.«
A note which was not signed at the foot by the maker, but whichpurported to bear over a stamp affixed at the top right hand cornerthe mark of the maker with his name in full written across it, washeld not to have been duly signed by the maker. In view of theprovision of the Stamp Ordinance as to cancellation of stamps,there was no reason to suppose that the signature was not intendedmerely to cancel the stamp on the note as a preliminary to itsexecution.
Pereira J.—Had the stamp been at the foot of the documentthe single act of signing across it may be tantamount to the execu-tion of the document and the cancellation of the stamp, but thatcan hardly be said to be the effect of the cancellation of the stampin the present case.
fpy^HE facts appear sufficiently from the judgment.
H. A. Jayewardene (with him F. H. B. Koch),.,for the defendant,appellant.^The defendant has not signed the note. The mark putby him on the top right hand comer amounts only to a cancellationof the stamp, as was pointed out in Maythin v. David.1 Thesignature of a document like this should be so introduced as togovern or authenticate every material and operative part of theinstrument. The judgment on which the Commissioner relies,Caton u. Galon,2 is in my favour.
A. St. V. Jayewardene, for the plaintiff, respondent.—It is notnecessary for the validity of a note that it should be signed at thelower right hand comer, though that is the usual place. Counselcited Byles on Bills 110, Taylor v. Dobbins,* Domingu Appuhamyv. Epetagedera ViianeA
Cur. adv. vult.
(1907) 4 Bal. 141.8 (1720) 1 Strange 399.
(1807) Jl. R. a Eng. & It. Cases 127; L. R. 2 H. L. 143. 4 (1800) 1 Tam, 7.
( 302 )
June 2, 1913. PEREiRi' J.—
The first question in this case is whether the promissory notesued upon has been duly executed by the defendant. The note hasnot been signed at the loot of it, but there is what purports to be umark made by the defendant on a stamp affixed at the top righthand corner, of the note, with the defendants name in full writtenacross the stamp. Now, if the decision in the case of Maythirn v.David 1 is to be followed, clearly the note has not been duly, signed.The Bills of Exchange Act, 1882, does not require a promissory noteto be signed at any particular place on the paper on which it iswritten. All that it requires is that the note should be signed bythe maker. In the same way the Statute of Frauds, which requirescertain documents to be signed by the party executing them, doesnot enact that- the signature should be placed on any particular partof the document, but it was held in CaloJi v. Caton 2 that the signatureshould be so placed as to govern or authenticate every material andoperative part of the instrument. The signature on the promissorynote sued upon can hardly be said to be so placed. The signaturedoes not appear to have reference to any, part of the writing on thepaper. It occurs at an unusual place, and there is no indication bymeans of a connection with brackets enclosing the writing, or somesuch device, that it is intended to govern the writing. On the otherhand, looked at in the light of the Stamp Ordinance of 1893,- which,applies to the case, it would appear that the signature was intendedfor the canellation of the stamp and nothing more. Under theStamp Ordinance (section 11) it is the duty of every person signingas party any instrument required by the Ordinance to be stampedto see that the stamp affixed thereon is distinctly cancelled beforehe signs the instrument. Of course, cancellation of the stamp afterthe instrument is signed by the party executing it does not renderthe cancellation any the less effectual (see section 8), but the dutyis cast upon the party signing an instrument to .see that the stamp iscancelled before he signs the document. That being so, the markon the stamp in this case may well be deemed to be the preliminaryact of cancelling the stamp,. Had the stamp been at the foot ofthe document the single act of signing across it may be tantamountto the execution of the document and the cancellation of the stamp,but that can hardly be said to be the effect of the cancellation ofthe stamp in the present case.
. I am, however, not inclined to think that the plaintiff has provedthat the defendant placed the 'mark on the stamp. The witnessSiimatambu does not support the plaintiff, and the note has not beenidentified by the witness Abdulla. On the whole, the balance oftestimony appears to be on the side of the defendant. I set aside thejudgment and dismiss the plaintiff's claim with costs.
. Set aside.
* (1907) 3 Bal. 141. * (L. R Eng. f ir Ap. Cas.t voh X/., p. 12; L. B. 2 H. L. SB.
MOHAMADU v. ROWTER