Page images

$ 3.

Money and money only.


add his signature at pleasure, it might be a security for the payment of money within sect. 75 of the Larceny Act, 1861 (24 & 25 Vict. c. 96).1

It has been held in France that where a bill payable to drawer's order was indorsed by him, though he omitted to sign it on the face, this was sufficient: Nouguier, $ 199.

A bill must be payable in “money”—that is, in legal tender. Therefore, an order requiring payment "in good East India bonds,” or “in the notes of the chartered banks of Pennsylvania,” is not a bill of exchange. In Ex parte Imeson (1815), 2 Rose, 225, an order to pay “in cash or Bank of England notes” was held invalid; but now by 3 & 4 Will. 4, c. 98, s. 5, the notes of that bank are made legal tender in England, except by the bank itself. As to legal tender in general, see the Coinage Act, 1870 (33 Vict. c. 10), ss. 4–6 (post, p. 342). Again, an order requiring the drawee to pay a certain sum of money and deliver up a wharf to the payee,+ or requiring him to pay a certain sum and take up a note for the drawer, is not a bill. So, again, an order to deliver to bearer on demand a certain quantity of iron is not a bill.6

By 48 Geo. 3, c. 88, negotiable bills or notes for less than 20s. were made void in England, and any person who issued or negotiated them was subject to a penalty not exceeding 201. An exception was made

in favour of cheques by 23 & 24 Vict. c. 111, s. 19. Both these Acts are repealed by Schedule II. to this Act. Consequently there is now no limit to the sum for which an English bill, note, or cheque may be drawn. By 8 & 9 Vict. c. 38, ss. 17-20, negotiable bills and notes for less than 208. are made void in Scotland, and any person who issues or negotiates them is subject to a penalty not exceeding 201., but an exception is made in favour of drafts on a banker for the payment of money

“ held to the use of” the drawer. This Act is not repealed.

As to promissory notes to bearer on demand, see note to sect. 83, post, p. 261.

Bills and notes under 20s.

1 R. v. Bowerman, (1891) 1 Q. B. 112.
2 Buller, N. P. p. 268.
3 McCormick v. Trotter (1823), 10 S. & R. 282 ; Story, § 43.

4 Martin v. Chauntry (1747), 2 Stra. 1271 ; Cf. ke Boyse (1886), 33 Ch. D. at p. 621.

5 Cook v. Satterlee (1826), 6 Cowan, New York R. 108; Story, $ 43. 6 Dixon v. Bovill (1856), 3 Macq. H. L. 1.

$ 3.

[ocr errors]


A bill is an "order;" therefore it must in its terms be imperative and not precative, but the insertion of mere

Order not terms of courtesy will not make it precative. Thus, an request. instrument running, “Mr. B. will much oblige Mr. A. by paying to the order of C., &c.,” was held good as a bill ; 1 but an instrument running, Please let bearer have 1001. and you will much oblige me," was held not to be a bill.2

It is of the essence of a bill that it should be payable at Certainty all events. Therefore its requisites must appear on its required. face with reasonable certainty. “ The reason is (and it is equally applicable to all negotiable instruments) that it would greatly perplex the commercial transactions of mankind, and diminish and narrow their credit, and negotiability, if paper securities of this kind were issued out into the world encumbered with conditions, 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. And hence the general rule is that a bill of exchange always implies a personal general credit not limited or applicable to particular circumstances and events which cannot be known to the holder in the general course of its negotiation." 3 Concerning the certainty required as to the drawee, see sect. 6; as to the payee, see sect. 7; as to the sum payable, see sect. 9.

A bill drawn payable in the common form, “as per advice,” is not conditional ; 4 but a bill payable so many days after the arrival of a certain ship is conditional, and invalid, for the ship may never arrive; 5 and the expression of an executory consideration on the face of a bill may perhaps make it conditional. As to instruments payable on a contingency, see further, sect. 11 (2), post, p. 31, and sect. 83, post, p. 261. There is this distinction between a bill and a note. A bill may not be drawn conditionally,



1 Ruff v. Webb (1794), 1 Esp. 129 ; Cf. R. v. Ellor (1784), 1 Leach, C. C. 323. The common form of a French bill runs “il vous plaira payer."

2 Little v. Slackford (1828), 1 M. & M. 171 ; Cf. Hamilton v. Spottiswoode (1849), 4 Exch. 200, where the document ran We authorize you to pay.”

3 Story, $ 46 ; Cf. Carlos v. Pancourt (1794), 5 T. R. 482, see at pp. 485, 487.

4 Story, § 65. See effect of "advice” there considered.

Palmer v. Pratt (1824), 2 Bing. 185. As to a note payable agreement," see Jury v. Barker (1858), E. B. & E. 459.

Drury v. Macaulay (1846), 16 M. & W. 146 (prom. note). But see sub-sect. 3.

as per

[ocr errors]
[ocr errors]

Particular fund.

and a note may not be made conditionally; but a bill may
be accepted conditionally: see sect. 19. Either a bill
or note, unconditional in its origin, may be indorsed con-
ditionally, sect. 33. Agaiu a bill or note unconditional
in form may, as between immediate parties, be delivered
conditionally : see sect. 21 (2), post, p. 54.

(3) An order to pay out of a particular fund
is not unconditional within the meaning of this
section ; but an unqualified order to pay, coupled
with (a) an indication of a particular fund out of
which the drawee is to reimburse himself or a
particular account to be debited with the amount,
or (b) a statement of the transaction which gives
rise to the bill, is unconditional.



The following are invalid, namely, orders or promises to pay
(say) 1001. :-

1. out of the money in your hands belonging to the X.

2. out of the money due from X. as soon as you receive it; ?
3. out of the money arising from my reversion when sold ; 3
4. on the sale or produce when sold of the X. Hotel; 4

5. out of the moneys now due, or hereafter to become due, to
me under the will of my late father, and before making any pay-
ment to me thereout.s

The following are valid, namely, orders or promises to pay say)
6. as my quarterly half-pay due 1st February by advance;

7. being a portion of a value as under, deposited in security for
the payment hereof;7

8. against cotton, per “Swallow";8
9. on account of moneys advanced by me for the X. Company;'


1 Jenney v. Herle (1723), 2 Ld. Raym. 1361.

Dawkes v. Lord Deloraine (1771), 3 Wils. 287 ; 2 W. Bl. 782.
3 Carlos v. Pancourt (1794), 5 T. R. 482, Ex. Ch.
· Hill v. Halford (1801), 2 B. & P. 413, Ex. Ch.
5 Pisher v. Calvert (1879), 27 W. R. 301, M. R.
6 Macleod v. Snee (1728), 2 Stra. 762.
7 Haussoullier v. Hart sinck (1798), 7 T. R. 733.
8 Cf. Inman v. Clare (1858), Johns. 769.
9 Griffin v. Weatherby (1868), L. R. 3 Q. B. 753.

10. against credit No. 20, and place it to account, as advised per $ 3. X. and Co.; ?

11. which you will please charge to my account, and credit according to a registered letter I have addressed to you.”

An order invalid as a bill may of course be valid as an equitable assignment.3 See the English and Arnerican authorities collected and reviewed in Munger v. Shannon. The tendency in New York seems to be to give effect to an order rather as an equitable assignment than as a bill; e.g., the following were held to be payable out of a par. ticular fund: "Pay C. or order 100 dollars, and deduct the same from my share of our partnership profits.” “Pay C. or order 100 dollars, on account of twenty-four bales of cotton shipped by you, as per bill of lading." (4) A bill is not invalid by reason

Date, place,

and value. (a) That it is not dated ; (6) That it does not specify the value given,

or that any value has been given therefor; (c) That it does not specify the place where it

is drawn or the place where it is payable. Though an undated bill may be valid, it is irregular to Date, issue it undated. As to filling in the date in the case of an undated bill or acceptance, see sects. 12 and 20, post, pp. 32 and 49. The alteration of the date is a material alteration : sect. 64 (2). Under most of the continental code: it is essential that a bill should be dated. As to the effect of this conflict of laws, see sect. 72 (1). It is believed that all countries, except those where the Greek Church is the prevailing religion, use the new style, or Gregorian calendar. As to bills pavable after date, drawn in a country where the old style prevails, see note to sect. 72 (5) post, p. 244.

[ocr errors]

1 Cf. Fanner v. Johnston (1871), L. R. 5 H. L. 157. ? Re Boyse (1886), 33 Ch. D. 612. 3 Buck v. Robson (1878), 3 Q. B. D. 686 ; Pisher v. Calvert (1879). 27 W. R. 301 ; see, too, Glyn v. Hood (1860), 1 De G. F. & J at p. 348, as to this distinction, and passim, Percival v. Dunn (1885), 29 Ch. D. 128.

4 Munger v. Shannon (1874), 61 New York R. 251 ; see, too, Corbett v. Clark (1878), 30 Amer. R. 763.

• French Code, Art. 110 ; Germ-n Exchange Law, Art. 4; Netherlands Code, Art. 100; Italian Code, Art. 251,

[ocr errors]
[ocr errors][merged small]

In England it is usual to insert in the bill either a state-
ment of the value, or the words "value received,” but this
has long been held not to be essential, for the law raises
a primâ facie presumption of consideration. In the case
of an accepted bill payable to drawer's order, the words
“ value received" mean value received by the acceptor; 2
while in a bill payable to a third party, they mean primâ
facie value received by the drawer. Whether a bill ex-
presses that value has been given or not, extrinsic evidence
is admissible between immediate parties and those in
privity with them to impeach the consideration, and show
its absence, failure, or illegality. The contracts arising
on a bill are contracts in writing. Subject, then, to the
provisions of sect. 21 (2), parol evidence is not admissible
to show that a bill was given


of an agreement
inconsistent with its terms. Thus a note is expressed
to be given “for commission for business transacted.
In an action by payee against maker evidence is admis-
sible to show that the payee never earned his commission; 6
but parol evidence would not be admissible to vary the
time of payment, or otherwise contradict the terms of the
instrument as interpreted by the law merchant, see post,

P. 57.

Under some of the foreign codes it is essential that the
nature of the consideration should in general terms be
stated in the bill: see Netherlands Code, Art. 100. The
German Exchange Law, Art. 4, and Italian Code, Art. 251,
do not require the consideration to be stated. By French
Code, Art. 110, the nature of the consideration must be
stated. A false statement of value constitutes a
tion de valeur,” and avoids the bill in the hands of parties
with notice; Nouguier, SS 282, 283. As to the effect of
this conflict of laws, see sect. 72 (1).

It is usual to state in a bill the place where it is drawn.
By 9 Geo. 4, c. 65, a penalty is imposed on the issue or


Place of making

| Hatch v. Trayes (1840), 11 A. & E. 702.
· Highmore v. Primrose (1816), 5 M. & S. 65.
3 Grant v. Da Costa (1815), 3 M. & S. 351.

4 Abbott v. Hendricks (1840), 1 M. & Gr. 791 ; Cf. Thompson v, Clubley (1836), 1 M. & W. 212; Abrey v. Crux (1869), L. R. 5 C. P. 37.

5 Ridout v. Bristow (1830), 1 Cr. & J. 231 ; Foster v. Jolly (1835), 1 C. M. & R. 703; Young v. Austen (1869), L. R. 4 C. P. 553; Hill v. Wilson (1873), 42 L. J. Ch. 817 ; L. R. 8 Ch. App. 888.

6 Abbott v. Hendricks (1840), 1 M. & Gr. 791, seo at p. 796.

« PreviousContinue »