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In England it has been held, that when the law requires a contract to be in writing, it need not be in ink.'
Unconditional.—As to this Lord Kenyon said, “It would perplex commercial transactions, if paper securities of this kind, were issued into the world, incumbered with conditions and contingencies, and if the persons to whom they were offered in negotiation, were obliged to inquire when these uncertain events would be reduced to a certainty."
The following was held not to be a promissory note “ At twelve months, I promise to pay A. B. £500, to be held by them as collateral security, for any monies now owing to them by J. M., which they may be unable to recover on realising the securities they now hold, and others which may be placed in their hands
The promise to pay the £500 at 12 months as security for the present debts of J. M., would have been a good promissory note, because no condition was attached, and a certain sum and a certain period were fixed, but the latter portion, which made the payment contingent on securities, then held or to be held by the payee, not realising the amount of the debt due by J. M. to him, introduced an uncertainty, as to whether the maker would ever have to pay the £500, to enter into the contract, and thus deprived it, of its character of a promissory note. If on the wording of the document, an absolute promise to pay, can be made out, or if it can be so construed, it is a promissory note, and it lies upon a party alleging a condition to establish the condition. Where the document was, I promise to pay to J. S. his order as per memorandum of agreement," it was held, that it was a promissory note, and if the agreement was conditional, the proof of its being conditional lay upon the maker. 4
Under the former Stamp Act, 5 which defined a promissory note to include, every instrument whereby the maker engages absolutely to pay a specified sum of money, to another at a time therein limited, or on demand, or at sight, the following was held to be a promissory note. “Whereas I have borrowed Rs. 1,500 from you, without interest, and without a bond, hence I declare that I shall repay, on or before the 15th Falgoor, Sooddee, the whole amount
Geary v. Physic, 5 B. & C.
? Carlos v. Fancourt, 5 T. R.
213; S. C. 3 Jur. 1188; 3 P. & D. 147:
Fury v. Baker, E. B. & E. 459; S. C. 27 L. J. (Q. B.) 255.
5 XVIII of 1869, S. 3, cl. (26).
in question, in one lump, and take back this chittee. Should I fail to repay the amount in question on the above date, I will pay interest at one per cent. per mensem from 1st Chyet, payment, month after month. Therefore I write this Chittee for the loan, that it may be of service in the future," and again under the same act “Rajah Narain Burdhun deposited with me from your tukveel, 900 rupees. I will pay the same on demand, with interest at l per cent. per month from this date to date of payment”2 held to be a promissory note.
Signed.- According to the English cases it is sufficient, that the maker's name is written by himself, in any part of the instrument, so that it appear, to be his instrument. The usual place, however, in a mercantile instrument, for the signature of the maker, is the right hand corner at the end of the document, but in this country it can hardly be said, that except in the Presidency towns, any place but the end is more usual than another. Whenever the maker of an instrument, or his agent, acting with authority, introduces the name of the maker, with the view to authenticate the instrument, as the instrument of the maker, such an introduction of the name is a sufficient signature.' It is conceived, that as in England, where the maker is unable to write his signature, his mark will be sufficient under the Act. From the speech of Mr. Massey, on the introduction of the Draft Bill, (13th December 1867), it appears it was not considered advisable, to allow of the execution of negotiable instruments, by sealing or stamping, and as no provision is made in the Act, such an execution will not be a signature; and it was considered in a late case in England, that instruments under the seal of a body corporate are not exceptions from the general rule, that at common law Bills of Exchange and Promissory Notes, being simple contracts, cannot be under seal, at least, so as to retain their negotiable qualities.
The affixing of a company's seal will not, however, unless the instrument so expresses it, be proof, that the instrument was executed on behalf of the company, and thus deprive it of the
1 Nundun Misser v. Mussamut Chittur, 13 B. L. R., App. 33 ; S. C. 21 Suth. W.R. 446.
? Ankur Chuno V. Madhub Chunder, 21 Suth. W. R. 1.
3 Mathura Das v. Babu Lal, I L. R., 1 All. 683, see Addison on Contracts, 7th ed. 159.
4 Crouch v. Credit Foncier, L. R. 8 Q. B. at p. 383.
character of a promissory note, as against the persons signing it, even though they sign it as Chairman and Directors.'
By the Indian Companies Act,? any contract, which if made between private persons, would be by law, required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the Company, in writing, signed by any person acting under the express, or implied authority of the Company: and any such contract may, in the same manner, be varied or discharged. And all contracts made according to the provisions therein contained shall be effectual in law, and shall be binding upon the Company and their successors, and all other parties thereto, their heirs, executors or administrators, as the case may be.
A lithographed signature has been held in England to be sufficient, and also initials, when intended as a signature.*
Maker.-The person signing the promissory note is called the maker, and the person to whom the amount of the note is made payable the “payee” (see Sec. 7). The making of a promissory note is altogether the act of the maker, and delivery to the promisee, is required to make it complete.5
Certain sum of money only.—(See notes to Sec. 5). There must be certainty as to the amount of money that is due; all the money that is due upon the instrument must be payable to the holder of it, for if there is anything on the face of the instrument, to show that there is more or less payable on the instrument, than is payable to the holder of it, that will make it bad as a negotiable instrument. The following was held not to be a promissory note, “received and borrowed from T. Bolton, the sum of £30 which I promise to pay with interest at 5 per cent., I also promise to pay the demands of the sick club at H., in part of interest, and the remaining stock and interest to be paid on demand”.6
i Dutton y. Marsh, L. R. 6 Q. B.361;S C. 40 L. J. (9. B.) 175; see also New Fleming Spinning Com. in re, I. L. R. 3 Bom. 439; affd. I. L. R. 4 Bom. 275; The Nursey Spinning Co. in re, I. L. R. 5 Bom, 92.
? Act VI of 1882, s. 67 (b) (c)., (App).
Birmingham Bank Co., parte, L. R, 3 Ch., pp. 653, 654;
5 Winter v. R. 202,
Round, 1 M. H. C.
6 Bolton v. Dugdale, 4 B. & Ad, 619; S. C. 1 N. & M. 42, see ills. (d) and (e) and the cases quoted against them,
The instrument must not provide for the payment of any thing but money. Thus, where the instrument was, “I promise to pay H. A. N. £500 and also to give him my Life Policy for £500 and a lease of my house" was held bad as a promissory note;' so als “I promise to pay £13 and all the fines according to rule," because the fines were uncertain in amount. And where the sum to be paid is defined, and there is an arrangement, that it is not to be wholly paid, as, for instance, that a portion is to be taken as a set-off, it would be bad. We have seen in Follett v. Moore, (supra), that an instrument promising to pay money, and give security, is bad as a promissory note, as containing promises other than to pay a sum of money, but an instrument reciting that security has been given is good. The sum must not be payable out of a particular fund, for there is the contingency of the fund not proving sufficient."
Form.-" The common form is “ I promise to pay A. B.” or “ I promise to pay the bearer” as for instance, a currency note. “But if an instrument is expressed 'I bind myself to pay," that “ is also a promissory note, or in short, anything from which a “ Court can collect an obligation on the one side to pay in favor “ of another is a promissory note
a promissory note
may be in a long form or a short form, or to pay on a cer“ tain day without interest, or at a distant day with interest. Any “person may make a promissory note payable twenty years hence, “ with interest half-yearly, and the Statute of Limitations, would “ not begin to run till the expiration of that period."
To a certain person.—The promissory note must be payable to a particular individual, or his order, or generally, to bearer, such person is called the payee, (Sec. 7). He must be adequately defined as such, so that he cannot be confounded with another person, and must be capable of being ascertained at the time the instrument is made.? If an individual is named, a mistake in
1 Follett v. Moore, 19 L. J. (ex.) 5 Fosselyn v. Lacier, 1o Mod. 6; S. C. 4 Exch. Ch. 410, 294 ; see Griffin v. Weatherby,
Airey v. Fearnsides, 4 M. & post, s. 5. W. 168.
6 Land Company of Marseil3 Davies v. Wilkinson, 10 A. & les, in re, L. R., 11 Éq. per Malins E. 98; S. C. 2 P. & D. 256; see V. C. at p. 489 also ill. (h) and case there quote ? Yates v. Nash, 29 L. J. (C. ed.
P.) 306; S. C. 8 C. B. (N. S.) 4 Fancourt v. Thorne, 9 Q. B. 581.
his name is not of importance, if it be clear who was intended, and any statement in the body of the instrument, which shows who is to be the person to be paid, is sufficient although it does not in words say to whom it is payable. Thus “received from A. B. £100, which I promise to pay on demand” was held sufficient to show that A. B. was the payee.' If made payable to bearer, or to a specified individual or bearer, that is sufficient and in the latter case it does not matter, though the individual named never existed. So a draft pay to ship “Fortune” or “ bearer," is negotiable by delivery.” An instrument in the following form, was held be neither a promissory note nor bill of exchange ;
Skip “ Jasper.” There was no date to the instrument, or signature of any drawer. Erle, C. J. said, “ It is certainly not a bill of exchange or a promissory note. It is in fact only an inchoate instrument, though capable of being completed.”3
There must not be any alternative “payee,” for instance, if a note be made payable to A. or to B. or C. or his or their order, that is not a negotiable note, for as was said by Abbott, C. J. “ If a note be made payable to one of two persons, it is payable " to either of them, only in the event of its not having already “ been paid to the other.” 4
It is a good description, to indicate the payee by his title of office, if he occupies an official position, but the document would be bad if the description given were
person who from time to time should occupy such position,” for the payee must be pointed out at the time the instrument is drawn, he must be a person certain, and the description must be one, which will permanently attach to some one individual. A promissory note in the terms “I promise to pay to the Manager of the National
i Green v. Davies, 4 B. & C. 234; S. C. 6 D. & Ry. 306.
2 Grant v. Vaughan, 3 Barr. 1516.
3 McCall v. Taylor, 34 L. J.(C. P.) 365 ; S. C. 19 C. B (N. S.)
301, see also Stoesiger v. S. E. Ry. Co., 3 E. & B. 549; S. C. 23 L. J. (Q. B.) 293.
* Blanckenhagen v. Blundell, 2 B. & Ald. 417.