CHAPTER VI. Usance. Request to pay. Description of the payee or indorsee. Foreign bills are sometimes drawn at one, two, or more usances, or, as it is sometimes expressed, at single, double, treble, or half usance. Usance signifies the usage of the countries between which bills are drawn with respect to the time of payment. If a foreign bill be drawn, payable at sight, or at a certain period after sight, the acceptor was formerly liable to pay according to the course of exchange at the time of acceptance, but now of payment, unless the drawer express that it is payable according to the course of exchange at the time it was drawn, en espèces de ce jour (u). Where half usance stands for half a month, it is fifteen days. And in the case of all bills payable in England, month means calendar month. Code, s. 14 (4). The bill or note must be certainly payable at some time or other (x). in no particular form: any order (y), or direction, is itself is not indispensable. The order to pay need be expression amounting to an sufficient. The word "pay" Any synonymous or equivalent expression will suffice, as "Credit in Cash" (z). Where a bill or note is not payable to bearer, the payee, or if it be specially indorsed the indorsee, should be named or otherwise indicated therein with reasonable certainty, so that he cannot be confounded with another person of the same name, and must be a person who is capable of being ascertained at the time the instrument is made (a). It is sufficient that the payee be so designated, though he be not named (b). But if the bill get into the hands of a (u) Poth. 174. Code, 72 (4). (y) Hamilton v. Spottiswood, In France, il vous plaira payer, is the common language of a bill. Morris v. Lee, 2 Ld. Raym. 1397; 1 Stra. 629. Quære, whether a mere written request, without any words of demand, amount to a bill. Lord Kenyon held this instrument to be a bill: -"Mr. Nelson will much oblige Mr. Webb, by paying to J. Ruff, or order, twenty guineas on his account." Ruff v. Webb, 1 Esp. 129; 5 R. R. 723. But Lord Tenterden held the following instrument not to be a bill" Mr. Little, please to let the bearer hare seven pounds, and place it to my account, and you will oblige your humble servant, R. SLACKFORD." Little v. Slackford, 1 M. & M. 171; 31 R. R. 726. The paper," says his Lordship, "does not purport to be a demand made by a party having a right to call on the other to pay. The fair meaning is, you will oblige me by doing it.' But see Russell v. Powell, 14 M. & W. 418. (2) Ellison v. Collingridge, 9 C. B. 570. (a) Yates v. Nash, 29 L. J., C. P. 306; 8 C. B., N. S. 581. Code, ss. 7 and 34. (b) Storm v. Stirling, 3 E. & B. 832; Cowie v. Stirling, 6 E. & B. 333. VI. wrong payee, unless it be payable to bearer, he can neither CHAPTER acquire nor convey a title. One Christian drew a bill on the defendant, in London, payable to Henry Davis. The bill got into the hands of another Henry Davis than the one in whose favour it was drawn, was accepted by the defendant, and by the wrong Henry Davis was indorsed to the plaintiff. Held, that the indorsement of his own name by Henry Davis, was, under these circumstances a forgery, and (dissentiente Lord Kenyon) could convey no title to the plaintiff (c). If the name be spelt wrong, parol evidence is admissible to show who was intended (d). If there be father and son of the same name, it will be intended payable to the father till the contrary appear (e). But if the son be found in possession of the note, and he indorse, that is evidence that he, and not the father, is payee (ƒ). A note payable to A., or to B. and C., or his or their order, was not a promissory note, within the Statute of Anne (g). A note in this form—“ 157. 5s. balance due to A. C., I am still indebted, and do promise to pay " (h). Or in this— "Received of A. B. 100l., which I promise to pay on demand, with lawful interest," sufficiently designates the payee (i). A note payable "to the trustees acting under A.'s will" is a good note, and parol evidence is admissible to show who the trustees are, and what are the trusts (k). A note was made payable to the manager of the National Provincial Bank of England. To an action by the payee in his own name, the defendant pleaded that he did not make the note. Held, that under this plea the plaintiff was entitled to recover (1). "On demand I promise to pay J. W., T. S. and D. M., or to their order, or the major part of them, 1007." is a promissory note upon which the three persons mentioned can jointly maintain an action (m). 66 If a bill or note be made payable to a fictitious or non- Fictitious existing person, it may be treated as payable to bearer (n). payee. (d) Willis v. Barrett, 2 Stark. 29. (e) Sweeting v. Fowler, 1 Stark. 106; Wilson v. Stubs, Hobart, 330; see Bro. Ab. Addition, 18, 34, 43, 9 to 6; 13 Dyer, 5. (f) Stebbing v. Spicer, 19 L. J., C. P. 24; 8 C. B. 827. (g) Blanckenhagen v. Blundell, 2 B. & Ald. 417. See now Code, s. 7. (h) Chadwick v. Allen, 2 Stra. 706. (i) Green v. Daries, 4 B. & C. 235; 6 D. & R. 306; 28 R. R. 230. (k) Megginson v. Harper, 4 Tyr. 96; 2 C. & M. 322; 39 R. R. 784. (1) Robertson v. Sheward, 1 M. (m) Watson v. Evans, 32 L. J., CHAPTER It was once held, that if the drawer indorsed a fictitious payee's name, the holder could not recover against the acceptor, unless his money had reached the acceptor's hands, in which case he could sue for money had and received, but that if the acceptor at the time of acceptance knew the payee to be a fictitions person, he could not take advantage of his own fraud; but a bona fide holder might recover against him on the bill, and declare on it as payable to bearer, or recover on the money counts (0). So the holder may recover against an acceptor for the honour of (0) Bennett v. Farnell, 1 Camp. hircor. N. & $. Wales v. Machatte, (1908) 77 LJ. K.B. 464. put this point directly in issue, and the unanimous opinion of the Court was, that where the circumstance of the payee being a fictitious person is known to the acceptor, the bill is in effect payable to bearer. Soon after the Court of C. P. laid down the same doctrine in Collis v. Emett, 1 H. Bl. 313. This decision was acquiesced in; but Minet v. Gibson was carried up to the House of Lords, 1 H. Bl. 569. The opinion of the Judges being then taken, Eyre, C.B. (p. 618), and Heath, J. (p. 619), were for reversing the judgment of the Court below, and Lord Thurlow, C., coincided with them (p. 625), but the other judges thinking otherwise, judgment was affirmed. Parl. Cas. Svo. ii. 48. In Gibson v. Hunter, 2 H. Bl. 187, 288, which came before the House of Peers upon a demurrer to evidence, it was held, that in an action on a bill of this sort against the acceptor to show that he was aware of the payee being fictitious, evidence was admissible of the circumstances under which he had accepted other bills payable to fictitious persons. Vide Tuft's case, Leach, Cro. Law, 159." Phillips v. Im Thurm, 18 C. B., N. S. 694. It is now immaterial whether the acceptor, or party sought to be charged, knew or not. Vagliano v. Bank of England, 1891, Ap. Cas. 107; 60 L. J. 145; Clutton v. Attenboro, [1897] Ap. Cas. 90; 66 L. J. 221. See Vinden. Hughes [1905] 1 K.B.795. the drawer where the payee is a fictitious person and treat CHAPTER the bill as payable to bearer (p). VI. A bill not made payable to any payee in particular, or No payee. to the drawer's order, or to the bearer, was held by the majority of the judges, dissentiente Eyre, C. B., to be payable to bearer (q). And when a blank is left for the payee's name, a bonâ fide holder can fill in his own name, and recover against the drawer (r). But in order to charge the acceptor the holder must show that he had at least prima facie an authority to insert his own name as payee (3). Until the omitted particular is filled in the instrument, apparently, will not comply with the definition in the Code, s. 3, so as to be a bill of exchange. This applies an indors miu? Glenie & mith [1908] IK.B. 263. Where a simple signature on a blank stamped paper is Blank signadelivered by the signer in order that it may be converted tures. into a bill or note, it operates as a prima facie authority to complete the bill or note up to any amount warranted by the stamp and the signature may be used for maker or acceptor, drawer, or indorser (t). And in like manner when a bill or note is wanting in any material particular, the person in possession of it has a prima facie authority to fill up the omission in any way he thinks fit. But in order to (p) Phillips v. Im Thurm, 18 C. B., N. S. 694; and see Phillips v. Im Thurm, L. R. 1 C. P. 463; 35 L. J. 220. (q) Minet v. Gibson, 1 H. Bl. 608; 1 R. R. 754. Dawn v. Vallentin, 11 T. L. R. 211; and see Lord Esher's remarks in Chamberlain v. Young, infra, at p. 209. The omission may be filled up at the holder's pleasure. Code, s. 20; Cruchley v. Mann, 5 Taunt. 529; so long as he is acting bonâ fide. Hogarth v. Latham, infra. (r) Cruchley v. Clarence, 2 M. & S. 90; 14 R. R. 596; Attwood v. Griffin, R. & M. 425; 2 C. & P. 368; 31 R. R. 669; Code, s. 20 (1). Where an acceptance in the name of a firm was given by one partner without authority, a blank being left for the drawer's name, a holder, who suspected the above facts, was held not entitled to fill in his own name as drawer and payee, and sue on the bill. Hogarth v. Latham, L. R., 3 Q. B. D. 643. In R. v. Randall, or order, was held not to be (8) Cruchley v. Mann, 5 Taunt. 529; 1 Marsh. 29; Awde v. Dixon, 6 Ex. 869. Code, s. 20, gives such a primâ facie authority where the instrument has been delivered incomplete for that purpose. So a note payable to Ship Fortune or bearer" is payable to bearer simply. Grant v. Vaughan, 3 Burr. 1516. 66 (t) Russell v. Langstaffe, 2 Doug. 514; Code, s. 20. The authority seems not confined to the person, to whom it is delivered, but to extend to any bonâ fide holder, as the words of the section are general. (3) W. handed to A a blank sig und saper (stamped to cover (75) with instructe vas CHAPTER I to whome such an umont has been migofabed (3) Joint or When nego- Order or Div. Ct. enforce it against prior parties, it must be filled up within A bill or note may not only be made to two or more A bill may be drawn payable to drawer, or his order, or payable to drawee or his order; but if the drawee be the same person as the drawer, or a fictitious person, or one incapable of contracting, the holder may treat the instrument either as a bill or note, at his option (y). All bills and notes are in their nature negotiable, unless they contain special words prohibiting transfer. Negotiable bills and notes continue to be so, until they have been either restrictively indorsed, or discharged by payment or otherwise (z). Negotiable bills and notes may be payable either to order or to bearer, but these actual words need not be present. A bill or note is payable to bearer, which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank. A bill or note is payable to order, which is expressed to Accepted will, left with a to (a) Code, s. 7. Formerly there B. & A. 417. (y) Code, S. 5. See post, Chapter on IRREGULAR INSTRU MENTS. (z) Code, ss. 8 and 36. At least until maturity, as the transferee of an instrument overdue does not acquire a new and smped a blank paper (read to cover (love) thanded it to e to fill up as a promṣ note pyable L. for 1250. a frandulist pilled it up as a pron's note for 1000 payable to 6. & borrowed money of Lor it. Held & war artofifed from setting up ater limited authority, Lloyd's Bank Ltd u. Cooke" [1907] 1 K.B. 794. R.A. The payee is protected, for thischer independent title; discharge by (a) Code, s. 8. Formerly a bill |