Durack v West Australian Trustee Executor and Agency Company Limited [1944] HCA 21

rae s olf doy. "i 479 Us uj:tR. SF

72 C.L.R.] OF AUSTRALIA. 189

{HIGH COURT OF AUSTRALIA.]

DURACK & OTHERS. . .—._—s._ APPELLANTS; DEFENDANTS, Cfo. 04) 9.0. BGA ae

WEST AUSTRALIAN TRUSTEE EXECUTOR R & AGENCY COMPANY LIMITED ; See: Prarytirr,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

Bills of Buchange—Promissory note—Indorsement before delivery to payee—Intention H, C, oF A. of indorser—Indorsement by payee below prior indorsement—Bills of Exchange 1944, Act 1909-1936 (Cth.) (No. 27 of 1909— No. 74 of 1936), ss. 4, 25, 34, 35, 36, = A

60, 61, 90, 95. Metrourye, . ae May 17, 18. Companies—Memorandum of association — Loan by company to finance purchase of its shares—Ulira vires, Sypwey, Aug. 9

A person who signs a promissory note on the back thereof with the intention of incurring the liabilities of an indorser is so liable notwithstanding that his Latham C.J.,

signature was made before delivery of the note to the payee and that the yftitit, Starke, Williams JJ.

payee's indorsement was subsequently made below his signature. So held by Rich, Starke and Williams JJ.

A signed his name on the back of a promissory note before it was delivered to the payee. After delivery the payee indorsed the note below A's signature, which was so close to the edge of the note that there was no room for an indorse- ment above it. The note was given pursuant to an agreement to which the maker of the note, the payee and A were parties. The agreement provided that, on receipt of the note indorsed by A, the payee would return promissory notes, given under an earlier agreement, which had been indorsed by A " without recourse." The note was not met at maturity by the maker. In an action on the note by the payee against A the trial judge found that A had signed the note with the intention of making himself liable as an indorser to the payee for the amount of the note. Judgment was given for the payee for that