C. A. 1905 LEWIN V. END. LEWIN บ. occupied as such." I am unable to differ from the findings of the learned county court judge in this respect. In my opinion, by the words " capable of being occupied as such," the learned Baron meant buildings which, without substantial structural alteration, are capable of being occupied as dwelling-houses. In both the cases now before us it seems to me that, in order that the buildings should be capable of being occupied as dwelling-houses, substantial structural alterations would be ASSOCIATION. required. I therefore agree that the appeal should be dismissed. CIVIL SERVICE SUPPLY Appeal dismissed. Solicitors: Bartlett & Large; Harry Wilson; Tathams & Pym. W. L. C. [IN THE COURT OF APPEAL.] EMBIRICOS v. ANGLO-AUSTRIAN BANK. Bills of Bill of Exchange — Cheque - Cheque stolen Abroad - Forged Indorsement - The rule of international law, that the validity of a transfer of movable chattels must be governed by the law of the country in which the transfer takes place, applies to the transfer of bills of exchange or cheques by indorsement. Alcock v. Smith, [1892] 1 Ch. 238, followed, as being a decision to that effect. Per Vaughan Williams L.J.: Semble, that the indorsement of a bill of exchange in a foreign country, valid under the foreign law but invalid under English law, would be effectual to give the indorsee a good title to the bill as against the drawer or acceptor. Sect. 24 of the Bills of Exchange Act, 1882, does not apply to an indorsement of a bill of exchange abroad. That section is only declaratory of English law, and does not control the general rule of international law. Lacave v. Crédit Lyonnais, [1897] 1 Q. B. 148, distinguished. A cheque on a London bank was drawn in Roumania in favour of the plaintiffs, who the same day specially indorsed it to a firm in London, and placed it, with a letter, in an envelope addressed to that firm in London. The cheque was stolen from the envelope by one of the plaintiffs' clerks. The cheque was presented at a bank in Vienna by a person who desired that it might be cashed. It then bore an indorsement, which purported C. A. 1905 Feb. 8, 9, 10. C. A. 1905 EMBIRICOS v. ANGLOAUSTRIAN BANK. to be that of the London firm, but which was in fact forged. The Vienna Held, that Alcock v. Smith, [1892] 1 Ch. 238, applied, and that the Decision of Walton J., [1904] 2 K. B. 870, affirmed. APPEAL from the decision of Walton J. (1) The action was brought by Messrs. L. & M. Embiricos against the Anglo-Austrian Bank to recover damages for the wrongful conversion of a cheque. On March 6, 1903, a Roumanian bank drew a cheque at Braila, in Roumania, on a London bank payable to the plaintiffs or order. The same day the plaintiffs at Braila specially indorsed the cheque to G. Embiricos & Co., a London firm, and wrote to them a letter which, with the cheque, the plaintiffs placed in an envelope addressed to G. Embiricos & Co. in London. The cheque was stolen from the envelope by a clerk of the plaintiffs. On March 9, 1903, the cheque was presented at the bank of Messrs. Schelhammer & Schatterer, in Vienna, by a person who desired that it might be cashed. It then bore the indorsement G. Embiricos & Co., in addition to the special indorsement to that firm by the plaintiffs. The indorsements were apparently regular and in order, but that of G. Embiricos & Co. was in fact a forgery, though Messrs. Schelhammer & Schatterer were ignorant of the forgery. They telegraphed to the Roumanian bank, and, having ascertained from them that the cheque was in order, they cashed it, and on the same day they indorsed it to the defendants and posted it to them in London, where the defendants cashed it at the bank on which it was drawn. According to an affidavit made as to the Austrian law by a doctor of law of the University of Vienna, "the holder of a cheque which he has bought bonâ fide without gross negligence and for value is identified as the proprietor of the cheque, and entitled to the proceeds thereof against all the world, notwithstanding that the cheque has been previously stolen, and notwithstanding that the indorsement has been forged." Walton J. gave judgment for the defendants. He held, upon the authority of Alcock v. Smith (1), that the transfer of the cheque in Vienna was governed by Austrian law, and gave the Vienna bank a good title to the cheque, which title they transferred to the defendants. The plaintiffs appealed. J. E. Bankes, K.C., and Leslie De Gruyther, for the plaintiffs. In the case of a bill of exchange or a promissory note or a cheque payable in England, the right to enforce payment must be governed by the law of England, and a person who brings over from abroad a document of this kind which is governed by the law of England to the extent of the obligations of the drawee, if he seeks to use it as a negotiable instrument, cannot be heard to say that the law of England as regards that user does not apply: Lacave v. Crédit Lyonnais. (2) A distinction must be drawn between the title to the document and the power to enforce payment. The judgment of Romer J. in Alcock v. Smith (1) is opposed to this contention; but the Court of Appeal, in affirming that judgment, proceeded on different grounds; and that case is distinguishable from the present, because there there was no question of a forged indorsement. Sect. 72 of the Bills of Exchange Act, 1882, provides that, subject to the provisions of the Act, the interpretation of the indorsement of a bill is determined by the law of the place where the contract is made (3); but that must be read (1) [1892] 1 Ch. 238. (2) [1897] 1 Q. B. 148. (3) Sect. 24: "Subject to the provisions of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorized signature is C. A. 1905 EMBIRICOS v. ANGLO AUSTRIAN C. A. 1905 v. ANGLO AUSTRIAN in connection with s. 24, which says that under no circumstances will the law recognise a forged instrument. Therefore the indorsement referred to in s. 72 must mean a genuine indorsement. [They also cited Bobbett v. Pinkett (1); Lebel v. Tucker (2); In re Marseilles Extension Railway and Land Co. (3); De la Chaumette v. Bank of England (4); Robertson v. Burdekin. (5)] Cohen, K.C., and Maurice Hill, for the defendants. The sole question is whether the defendants have wrongfully converted the cheque to their own use. There was no wrongful conversion as in Arnold v. Cheque Bank. (6) The question whether there was a wrongful conversion by the defendants depends upon whether at the time of the conversion the property in the cheque was in the plaintiffs. It is submitted that at the time of the conversion the plaintiffs had lost their property in the cheque. Under the Austrian law the Vienna bank as purchasers for value without negligence acquired a good title to the cheque by the indorsement to them, notwith is sought to retain or enforce payment Sect. 72: "Where a bill drawn in of the United Kingdom, it may, for (1) (1876) 1 Ex. D. 368. (4) (1831) 2 B. & Ad. 385; 36 R. R. 599. (5) (1843) 6 Dunlop, 17. C. A. 1905 v. ANGLO standing that it was forged, and that good title they passed on to the defendants. It is contended that the ordinary rule of international law-that the transfer of a movable chattel is EMBIRICOS regulated by the law of the country in which the transfer takes place vide Dicey's Conflict of Laws, r. 140, p. 530-applies AUSTRIAN equally to negotiable instruments, and indeed applies to them a fortiori. And Alcock v. Smith (1) is an authority to that effect. This was distinctly so laid down by Romer J., and his decision was affirmed by the Court of Appeal. As regards movable chattels, the rule was recognised in Cammell v. Sewell (2); Castrique v. Imrie (3); Hooper v. Gumm. (4) An indorsement may give the indorsee of a bill of exchange a better title than the indorsee has: Sturtevant v. Ford. (5) It is submitted that the principle laid down in Cammell v. Sewell (2) is of universal application; a good title acquired in a foreign country to movable or to negotiable instruments by the law of that country will be recognised in every other civilised country. [VAUGHAN WILLIAMS L.J. referred to Phillips v. Warren (6); Emmett v. Tottenham. (7)] It is contended that ss. 24 and 72 of the Bills of Exchange Act, 1882, do not affect the present question. In re Marseilles, &c., Land Co. (8) does not establish the proposition for which it was cited. There the indorsement was bad according to French law, but good according to English law, and Pearson J. held that the bill must be treated, as between the drawer and his indorsee and the acceptors, as an English bill, and therefore the indorsement was valid. Robertson v. Burdekin (9) does not affect the present case. Because a transfer valid in one country is effectual in every other country, it does not follow that a transfer which is invalid in the country in which it is made is effectual elsewhere. [VAUGHAN WILLIAMS L.J. referred to Lebel v. Tucker. (10)] (1) [1892] 1 Ch. 238, at pp. 255, 256. (2) (1860) 5 H. & N. 728, 744. (5) (1842) 4 Man. & G. 101, 106. (7) (1853) 8 Ex. 884. (8) 30 Ch. D. 598. (10) L. R. 3 Q. B. 77. BANK. |