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“ Provincial Bank” was held to be a negotiable document, as it was a description of the person who at the moment of the note being made was Manager of that Bank." Where a note was made payable to the Secretary and Treasurer for the time being, of a particular institution, it was held not negotiable, because the description was that of the office, and not of the officer and might attach to several persons. ?
But where the note was, “ demand I promise to pay to the Trustees of the W. Chapel or “ their Treasurer for the time being £100,” it was held a good promissory note, because the Court were of opinion, that it was a note payable, in the first instance, to the trustees as payees, but with the option for the maker to pay to the Treasurer for the time being as their Agent. Blackburn, J., said, “I think the " construction of this instrument is, that it merely means, I
pro“ mise to pay to the Trustees or their Agent for the time being, " and I give notice that the Treasurer is such Agent. If I
thought that the Treasurer was named as payee, so as to be “ able to indorse the note had it been payable to order, or to sue
upon it, there would have been an uncertainty which would “ have vitiated it as a promissory note.”'3 A note cannot be made by a man to himself without more, but if made payable to himself or order, and blank indorsed, it becomes a note payable to bearer, 4 or if specially indorsed, it becomes payable to the indorsee or order. S
Where a note or bill is issued, without naming the person to whom it is to be paid, or the acceptor, or when it is not stated who is to be the drawer, the general rule is, that an imperfect instrument of this description is not negotiable, that it has not attained the stage of a good promissory note, or bill of exchange.
It is not necessary the consideration should be stated on the face of a promissory note. “I need not refer to the authorities which “show, that it is not necessary that the consideration should be “ stated on the face of a promissory note. The consideration “ will be implied, and the obligation to pay £20, is just as binding
i Robertson v. Sheward, 1 Scott, N. Rep. 419; S. C. 1 M. & G. 511.
2 Yates v. Nash, 8 C. B. (N. S). 581 ; S. C. 29 L. J., (C. P). 306; Storm v. Stirling, 3 E. & B. 832; S. C. 25 L. J. (9. B)., 300; S. C. in error, 6 E. & B. 333.
3 Holmes v. Jaques, L. R. 19.
4 Brown v. De Winton, 17 L. J. (C. P.) 281; S. C. 6 C. B. 336; Wood v. Mytton, 10 2. B. 805; Hooper v. Williams, 2 Ex. 13.
5'Gay v. Lawder, 17 L. J. (C. P.) 286; S. C. 6 C. B. 336.
" as if it had been expressed, “in consideration of £20 received “ from A. B. we bind ourselves to pay A. B. or order £20.'”.
Consideration will be presumed (Sec. 118). As to the stamps for promissory notes, (see Appendix.)
Limitation of Suits on Promissory Notes, (see Appendix.) Registration of Promissory Notes.-A promissory note or bill of exchange may be registered, Sec. 18, cl. (6), Act III of 1877, permitting all documents not specially mentioned to be registered ; they were expressly mentioned as registrable in Act XX of 1866, Sec. 18, and Act VIII of 1871, Sec. 18, and under Act XVI of 1864, Sec. 16, a promissory was held to be registrable as being “a contract or obligation."? When a promissory note or bill of exchange has been registered, the period of limitation is extended to six years, 3 a suit thereon being considered to be one for compensation, for breach of a contract in writing registered." Straight, J., says, “ Every bond or promissory note is a contract by which the obligor, or promisor agrees to pay money, either upon a particular date, or upon demand, and such contract can be performed either upon the specified date or when the demand is made. If payment is refused, or is not forthcoming, then there is a breach, and the suit against the defaulting obligor or promisor, is not to make him do any thing in furtherance of the contract, for the time for its performance is passed, but is in reality one for damages for the breach of it, the measure of which will be the amount of the debt with interest. 5
Date of Promissory Note.-Nothing is said about it being necessary to put a date on a promissory note, it will therefore, where there is none, be necessary to prove when it was made, and this is allowable. 5. A "bill of exchange" is an instrument in “Bill of er
change." writing containing an unconditional order, signed
i Land Co. of Marseilles, in re; L. R. 11 Eq. per Malins V. C. at p. 489; see also Hatch v. Trayes, 11 Ad. & E. 702 ; S. C. 2 P. & D. 408.
Pyari Chund Mitter v. Frazer, 6 Beng. L. R. App. 40.
3 Limitation Act, Art. 117, (App)
Nobocoomar Mookhopadhya v.
Siru Mullick, I. L. R., 6 Cal. 94;
3 Mad. 359.
by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. A promise or order to
is not "conditional," within the meaning of this section and section four, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.
The sum payable may be “ certain," within the meaning of this section and section four, although it includes future interest or is payable at an indi. cated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due.
The person to whom it is clear that the direction is given or that payment is to be made may be a “certain person," within the meaning of this section and section four, although he is misnamed or designated by description only.
The definition of a bill of exchange, differs from that of a promissory note, in that, instead of being an unconditional promise to pay a certain sum of money to a certain person, it is an unconditional order to a second party to pay a certain sum to a parti
cular person. '
In discussing the definition of a promissory note, we have considered the writing and signing, the certainty of the person and of the amount, and seen that it can only be made for the payment of money. The remarks there made, are applicable in their entirety to bills of exchange, and the remarks on the certainty of the sum and the person are further illustrated by clauses three
and four of this section. A few further remarks will, however, be here made showing the observations made by Courts on this instrument. Lord Hardwicke says, “ A bill of exchange is a contract of a very peculiar nature depending upon the custom of merchants and must be in writing.” One difference between a bill of exchange and a promissory note is, that to a bill of exchange there are three parties—the drawer the drawee or acceptor, and the payee; to a promissory note, two parties only, the maker and
Lord Mansfield says, “While a promissory note “ continues in its original shape of a promise from one person to “pay another, it bears no similitude to a bill of exchange. When “ it is indorsed, the resemblance begins, for then it is an order by " the indorser upon the maker of the note, to pay the indorsee. “ This is the very definition of a bill of exchange. Therefore, as
soon as a note is indorsed by the payee, the indorser is the “ drawer; the maker of the note is the acceptor; and the in“ dorsee is the person to whom it is payable.”2
In a bill of exchange the acceptor is in contemplation of law, the primary debtor to the payee, and the drawer is only the surety in case of default of the acceptor. In a promissory note the maker is primarily liable.3
Though the word 'order' is used in the section, it is not used in the sense of command, but rather in that of request or direction, and according to the English cases, any expression in the instrument from which the intention to cause payment to be made can be drawn, is sufficient to constitute an order. Lord Kenyon held the following to be a bill : “Mr. N. will oblige Mr. W. by paying to J. R. twenty guineas on his account." But where the instrument ran : “Mr. L., please let the bearer have £7 and place it to my account, and you will oblige your humble servant, R. S.” Lord Tenterden said, “The
paper port 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 paying, and that it was not a bill.” The reason being, that the law assumes a person who draws a bill on another, does so against funds of his, held by that other. In another case the Court
does not pur
· Thomas v. Bishop, 2 Str. 955.
? Heylin v. Adamson, 2 Burr. 676.
* Ruff v. Web, i Esp: 129.
3 Sec. 37
said, “Every bill must primâ facie be taken to have been drawn for value received, that is on a person who was to accept and pay, by reason of having value.'
Where the direction was in the following terms, it was held to be an order for the payment of money and not admissible in evidence on payment of penalty for not being stamped : “ We shall be obliged by your paying Mr. J. S. the sum £200, out of money payable to us, on the completion of our contract, for buildings now being built by us for your Company, and this receipt shall be a discharge for the same.”2 The following was held not to be an order for payment of money, but an assignment of a debt, “I do hereby order, authorize and request you to pay to Mr. B., the sum of £100 out of moneys due or to become due from you to me, and his receipt for the same shall be a good discharge.”3
The term an order for payment of money, pre-supposes moneys of the drawer in the hands of the party to whom the order is addressed, held on the terms of applying such moneys as directed by the order of the party entitled
Date.—Like in the previous section, nothing is said here about its being necessary to date a bill of exchange, but it
be shown when it was drawn.
As to Stamps, Limitation of suits on and Registration of bills of exchange, see notes to Sec. 4.
6. A “ cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.
The difficulty of accurately defining a cheque, will be seen on comparing the various forms the definition took, as the bill was passing through Council. Thus in the Draft Bill, prepared by the Indian Law Commissioners, among whom were the late Lord Justices James and Lush, and Lord Sherbrooke (Mr. Lowe), a cheque was defined to be, an instrument whereby a person is ordered to pay money which he holds at the order of the person who gives the order."
i Carter v. Flower, 16 M. &
. Shallard ex parte L. R. 17 Eq. 109, but dissented from in Buck v. Robson, infra.
s Brice v. Bannister, 3 Q. B. D. 569.
* Buck v. Robson, 3 Q. B, D. at p. 691.