Case 12-2 Mair v. Bank of Nova Scotia
徐月婷
常琳
张阳
王彤绯
胡武
李静
邓晓彬
0101163005
0101163017
0101163019
0101163023
0101163027
0101163030
0101163037
2013.12.23
• Background Information
• Case
Background Information
1. Promissory Note （本票）
 A written, dated, and signed two-party instrument containing
an unconditional promise by a maker to pay a definite sum of
money to payee on demand of specified future date.
Background Information
2. Bills of Exchange, Draft（汇票）
 An unconditional order in writing, addressed by one person to
another, signed by the person giving it, requiring the person to
whom it is addressed to pay on demand, or at a fixed or
determinable future time, a sum certain in money to or to the
order of a specified person, or to bearer.
 2 basic kinds
Time bill Bill of exchange that is payable at a definite future
time.
Sight bill Bill of exchange that is payable at the time it is
presented or at stated time after presentment.
Background Information
3. Check/Cheque （支票）
 A bill of exchange drawn on a banker payable on demand.

Differences among check, bills of exchange, promissory note
(1) Unlike other bills of exchange, checks are always payable
on demand.
(2) The only difference between a promissory note and a bill
of exchange is that the maker of a note promises to
personally pay the payee rather than ordering a third party
to do so.
(3) Bills of exchange must be signed by the drawer, and
promissory notes by their maker.
Background Information
4. Endorsement （背书）
 The act of a payee, drawee, accommodation party, or holder of
a negotiable instrument in signing the back of the instrument,
with or without qualifying words, to transfer rights in the
instrument to another.
Background Information
5. Holder (持票人） & Holder in due course （正当持票人）
 Holder A person who has physical possession of a bill or note
that was drawn, issued, or endorsed to him or her, or to his or
her order, or to the bearer, or in blank
 在结算中指持有票据(汇票、支票或本票)并有权要求按票据给定
的金额得到相应货币支付的任何人。一般来说，持票人可以是
票面上所记载的受款人、经前手特别背书后而取得票据权益的
受背书人、不记名汇票的持有人和经前手空白背书而取得票据
的受让人。
Background Information
5. Holder (持票人） & Holder in due course （正当持票人）
 Holder in due course Under common law (but not civil law), a
person who acquires a bill or note for value, in good faith, and
without notice that it is defective, overdue, or that any person
has a claim to or defense against it
 英美票据法对某一类持票人特定的名称。善意地花了对价(对价：
指当事人一方在获得某种利益时，必须给付对方相应的代价)，
取得一张表面完整、合格的未到期票据的持票人。
 票据的派生当事人具有以下特征：(1)所得票据表面完全正常；
(2)没有过期；(3)没有发现该汇票曾被退票；(4)不知道前手的权
利有任何缺陷；(5)善意地取得汇票，支付了对价，从而对票据
拥有完全的权利。
Case—Facts
An appeal from a decision dated June 18, 1980, in which
judgment was given for the respondent bank in respect of a
claim by the appellant alleging negligence and breach of duty in
the sum of $6,000 and interest, together with costs.
Parties
Appellant: An architect
Appellee: Bank of Nova Scotia
Case—Facts
1974
The appellant engaged Barbara Hill to assist him in work.
1.16
A $6,000 check was dated and made payable to “Barbara Hill”.
1.23
The check was altered by the addition of the words “Associates” as
payee, endorsed “Barbara Hill” and deposited at the branch of the
respondent bank at Worthing, Christchurch, Barbados to the credit
of “Barbara Hill Associates”.
1.29 The check was returned to the Antigua branch of the Bank of Nova
Scotia and in due course the canceled check was forwarded to the
appellant.
5.07 The appellant drew the bank’s attention to the alteration and
demanded reimbursement. The bank refused to reimburse.
Case—Issues



Can the alteration be identified as a material alteration?
Was the bank a holder in due course or not?
Did the drawer have suffered any actual damages due to the
alteration?
Case—Law & Explanation
Can the alteration be identified as a material alteration? YES.
 Section 64 of the Bills of Exchange Act(BEA) :
In particular the following alterations are material, namely, any
alteration of the date, the sum payable, the time of payment, the
place of payment, and, where a bill has been accepted generally,
the addition of a place of payment without the acceptor’s assent.

下列规定即为重要修改，如改日期、付款金额、付款时限及地点，
又如该票为普通承兑，未得承兑人同意而加上付款地点。
Case—Law & Explanation

Was the bank a holder in due course or not?
No, the bank is a holder.

Section 64 of the Bills of Exchange Act(BEA) :
Where a bill or acceptance is materially altered without the assent of
all parties liable on the bill, the bill is avoided except as against a
party who has himself made, authorized, or assented to the
alteration, and subsequent endorses. Provided that, where a bill has
been materially altered, but the alteration is not apparent and the bill
is in the hands of a holder in due course, such holder may avail
himself of the bill as if it had not been altered, and may enforce
payment of it according to its original tenor.


汇票或承兑，未经各当事人之同意而经重要修改，除对其本人或曾经
授权或同意涂改之当事人及继后之背书人外，不能认为有效。但如涂
改并不显明，合法持有人得视为未经涂改，而要求按照该票原文支付。
Case—Law & Explanation


Did the drawer have suffered any actual damages due to the
alteration?
No.
The damage suffered was the debiting of the appellant’s
account with a payment to someone other than the payee
stated by the appellant, and there was no evidence to show the
drawer had suffered any actual damages.
Thank you