M'Cartey v M'Loughlin and Doyle

• Jurisdiction: Ireland
• Judgment Date: 28 November 1876
• Date: 28 November 1876
• Court: Exchequer (Ireland)

Exchequer.

Before FITZGERALD, DEASY, and DOWSE, BB.

M'CARTEY

and

M'LOUGHLIN AND DOYLE.

Haly v. LaneENR 2 Atk. 181.

Cotes v. DavisENR 1 Camp. 485.

Prestwick v. MarshallENR 7 Bing. 565.

Prince v. BrunatteENR 1 Bing. N. C. 435.

Smith v. MarsackENR 6 C. B. 486.

Barlow v. BishopENR 1 East, 432.

Smith v. KnoxENR 3 Esp. 47.

Hallifax v. LyleENR 3 Ex. 446.

Drayton v. DaleENR 2 B. & C. 293.

Armani v. CastriqueENR 13 M. & W. 443.

Richards v. RichardsENR 2 B. & Ad. 447.

Pitt v. ChappelowENR 8 M. & W. 616.

Hallifax v. LyleENR 3 Exch. 446.

Barlow v. BishopENR 1 East, 432.

Richards v. Richards 2B. & Ad. 447.

Pitt v. ChappelowENR 8 M. & W. 616.

Smith v. MarsackENR 6 C. B. 486.

Prestwick v. MarshallENR 7 Bing. 565.

Prince v. BrunatteENR 1 Bing. N. C. 435.

Barlow v. BishopENR 1 East, 432.

Hallifax v. LyleENR 3 Ex. 453.

Smith v. MarsackENR 6 C. B. 486.

REdway v. M'AndrewELR L. R. 9 Q. B. 74.

Kavanagh v. CuthbertUNKIR I. R. 9 C. L. 141.

Pleading Demurrer Promissory note Married woman payee Indorsement Estoppel.

VOL. X.] COMMON LAW SERIES. 537 M'OARTEY v. McLOTTGHLIN AND DOYLE (1). Exchequer. Pleading-Demurrer-Promissory note-Married woman payee-Indorse 1876. ment-Estoppel. Nov. 4, 28. To an action by the indorsee against the makers of a promissory note made payable to a married woman, the Defendants pleaded that the payee at the time of the making of the note was the wife of one of the Defendants who signed as principal, and that the other Defendant signed as surety, that there was no value or consideration for the making of the note, and that the payee, being the wife of such Defendant, without his knowledge or authority indorsed the note to the Plaintiff, who had full knowledge of the premises :-Held (per DELSY and DOWSE, BB.) a good plea, the averments therein amounting to an averment of the determination of the authority. FITZGERALD, B., dissentiente, on the ground that the statements in the plea did not amount to an averment of the determination of the authority. DEMURRER to the first plea to the first count of the summons and plaint. The first count complained that the Defendants, on the 17th day of April, 1875, by their promissory note promised to pay to one Susanna McLoughlin, or order, the sum of 50 on the 1st day of November, 1875, and that she indorsed the note to the Plaintiff, but the Defendants have not paid the same : to which the Defendants pleaded,-that the said Susanna McLoughlin, to whom the said note is made payable, was at the time of the making of said note and still is the wife of the Defendant John McLoughlin, who signed the said note as principal, and the said Patrick Doyle signed as surety for said John McLoughlin, and there was no value or conÂÂsideration for the making of said note ; and the said Susanna McLoughlin then being the wife of the said John McLoughlin, and. without his knowledge or authority, indorsed the said note to the Plaintiff, who had full knowledge of the premises. Demurrer, on the grounds that the Defendants being makers of the promissory note were estopped from denying that the indorseÂÂment thereof was made without the knowledge or authority of the Defendant John McLoughlin, and because by the said proÂÂmissory note both the Defendants accredited the payee, and so authorized her to indorse the same, and because, the said promissory (1) Before FITZGERALD, DFASY, and DOWSE, BB. Tu. X. 2 0 THE IRISH REPORTS. [I. note having been made payable to the order of the payee, the Defendants are estopped from denying the authority of the payee to indorse the same. G. H. Gartlan, in support of the demurrer.-Ha/y v. Lane (1). On the very face of the note the wife is made the agent of the husband to negotiate it ; it is not even a case of presumption: Cotes v. Davis (2) ; Prestwick v. Marshall (3) ; Prince v. Brunatte (4). A party who makes a note to a person or order is estopped from denying that that person has authority to indorse, so here the Defendant is estopped by the nature of the note, which shows the wife is accredited to indorse : Smith v. Marsack (5) ; 2 Sm. Lead. Cas. (6th Ed.) 768: Byles on Bills (10th Ed.) 199. Knowledge of the coverture does not remove the estoppel. Barlow v. Bishop (6) is not an authority for the other side ; there the question of estoppel was never raised. Where an accommodation bill is sued. on it is no defence that the holder knew it was only an accomÂÂmodation acceptance : Smith v. Knox (7). The authority to indorse cannot be denied : Hallifax v. Lyle (8) ; _Drayton v. Dale (9) ; Amami v. Castrique (10). Monroe (with him Boyd), contra. The question of agency is one of fact, not of law, for the agency is revocable, and it is for a jury to say whether the agency existed at the time of the indorsement. It will hardly be argued that as between the husl)and and wife there is any estoppel: _Richards v. Richards (11) ; but if this is so, then the estoppel here relied on must be an estoppel in pais, on the ground that it would be a fraud to permit the Defendant to rely upon facts known to him alone at the time of indorsement over, to the disadvantage of third parties. That is not this case. If Barlow v. Bishop (6) is good law, then this demurrer must be overruled : that case was commented on in Pitt v. Chappelow (12) and Smith v. Marsack (5), (1) 2 Atk. 181. (2) 1 Camp. 485. (3) 7 Bing. 565. (4) 1 Bing. N. C. 435. (5) 6 C. B. 486. (6) 1 East, 432. (7) 3 Esp. 47. (8) 3 Ex. 446. (9) 2 B. & C. 293. (10) 13 M. & W. 443. (11) 2...