Page images
[ocr errors]


negotiation in England of bills or notes payable to bearer § 3.
on demand for less than 51., which are made or purport to
be made in Scotland or Ireland. German Exchange Law,
Art. 4, does not require the place of issue to be stated; but
in France the place where a bill is drawn must be stated :
French Code, Art. 110; Nouguier, SS 93—105.

It seems that a bill may state an alternative place of Place of
payment. Where a bill is made payable elsewhere than payment.
at the residence or place of business of the drawee, the bill
is said to be “ domiciled” where payable. As to present-
ment for payment when no place of payment is specified,
and the address of the drawee is not given, see sect. 45 (4),
post, p. 145. By French Code, Art. 110; Italian Code,
Art. 251 ; and German Exchange Law, Art. 4, the place of
payment must be stated.

Under some of the foreign codes it is necessary that a Rule of bill should be payable in a place different to that in which distantia loci. it was made. No distance is fixed by the codes, but it has been decided that the place of payment must be so far distant from the place of issue that there may be a possible rate of exchange between the two. According to the theory of French law, a bill of exchange pre-supposes a contract of exchange, that is to say, it pre-supposes a bonâ fide money transaction between places at a distance from each other into which the rate of exchange between the two places enters as a necessary element. It is said that recently this rule has been regarded by the French Courts as merely directory.

4. (1) An inland bill is a bill which is, or on Inland and

foreign bills. the face of it purports to be (a) both drawn and payable within the British Islands, or (6) drawn within the British Islands upon some person resident therein. Any other bill is a foreign bill.

For the purposes of this Act“ British Islands”

| Beeching v. Gower (1816), Holt, N. P. C. 313 ; Cf. Pollard v. Herries (1803), 3 B. & P. 335; note payable in London or Paris at holder's option.

? French Code, Art. 110 ; Netherlands Code, Arts. 100, 101 ; Spanish Code, Art. 249. Italian Code, Art. 251, negatives this rule.

Nouguier, SS 93—105; Bravard. Demangeat, 7th ed. p. 226.


§ 4.

mean any part of the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them being part of the dominions of Her Majesty.

(2) Unless the contrary appear on the face of the bill the holder may treat it as an inland bill.

ILLUSTRATIONS. 1. A bill is drawn in Liverpool on a merchant in London. It is accepted payable in London, but is indorsed in Paris. This is an inland bill.

2. A bill is drawn in Liverpool on B., who resides in London. B. accepts it payable in Paris. This is an inland bill.

3. A bill is drawn in London upon a merchant in Brussels, payable in London, and is accepted. This is an inland bill.?

The distinction between an inland and a foreign bill is this. A foreign bill if dishonoured must be protested, but an inland bill need not be protested: see sect. 51, post, p. 170. By sect. 45 (4), where no place of payment is specified in a bill, it is payable at the address of the drawee.

As to the measure of damages when a bill is dishonoured abroad, see sect. 57 (2), post, p. 192; and as to conflict of laws, see sect. 72, post, p. 238.

Sub-sect. (1) reproduces the effect of the repealed 19 & 20 Vict. c. 97, s. 7, with the addition of the words, " or on the face of it purports to be.” Sub-sect. (2) is new. sult appears to be that though a bill purports to be a foreign bill, the holder may nevertheless show that it is in fact an inland bill for the purpose of excusing protest ; while if it purports to be an inland bill, though really a fureign bill, he may treat it, at his option, as either.

This section dues not affect the provisions of the Stamp Act, 1891, which are saved by sect. 97 (3). For stamp purposes any bill drawn or made out of the United

The re

1 See sect. 72 (2); and cf. Lebel v. Tucker (1867), L. R. 3 Q. B. 77.

2 Cf. Amner v. Clark (1835), 2 C. M. & R. 468; and sect. 72 (3). If the bill were not drawnı payable in London, it would in its origin be a foreign Will, and would, presumably, continue so, though subsequently accepted payable in London.


are the same

Kingdom—e.g., a bill drawn in the Isle of Man—is a foreign § 4. bill: see post, pp. 356, 357. As to a foreign note, see sect. 89 (4), post, p. 271. 5. (1) A bill may be drawn payable to, or to Effect where

different the order of, the drawer ;? or it may be drawn parties to bill payable to, or to the order of, the drawee.

person. A bill is sometimes drawn in the form “Pay to your own order," when the drawee acts in two different capacities, e.g., if he be in business on his own account, and also agent for some other person interested in the bill. In such case, it is clear that the instrument is not a bill which can be enforced until the drawee has indorsed it away. A bill payable to “ — order,” which is indorsed by the drawer, is deemed to be payable to drawer's order.“

(2) Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note.

ILLUSTRATIONS. 1. A firm carries on business in London and Liverpool. The Drawer and London house draw a bill on the Liverpool house. The holder drawee same may treat it as a note made by the London house payable in Liver- person or pool; and if it be not paid the omission to give notice of dishonour firm. to the London house is immaterial.“

2. A. draws a bill on B. and negotiates it away; B. is a fictitious person. The holder may treat the bill as a note made by A. He need not prove presentment or give notice of dishonour.6

3. The directors of a joint stock company draw a bill in the name of the company, addressed “To the Cashier.” The holder may treat it as a note by the company.7


1 Cf. Butler v. Crips (1704), 1 Salk. 130: German Exchange Law, Art. 6.

? See Holdsworth v. Hunter (1830), 10 B. & C. 449 ; Witte v. Williams (1876), 28 Amer. R. 294 ; Pardessus, $ 339.

3 Cf. R. v. Bartlett (1841), 2 M. & R. 362.
4 Chamberlain v. Young, (1893) 2 Q. B. 206, C. A.

5 Miller v. Thomson (1841), 3 M. & Gr. 576 ; Fairchild v. Ogdensburgh Railway Co. (1857), 15 N. Y. 337 ; Cf. German Exchange Law, Art, 6 ; Willans v. Ayers (1877), 3 App. Cas. 133, P. C.

6 Smith v. Bellamy (1817), 2 Stark. 223.
7 Alen v. Sca, Pire, and Life Assurance Co. (1850), 9 C. B. 574.


§ 5.

By sect. 2, ante, p. 7, “person" includes a body of

' persons, whether incorporated or not. For purposes of proof in bankruptcy, where drawer and drawee are the same person or firm, the instrument can only be treated as a note; that is to say, there cannot be two proofs against the same estate, because of the form of the instrument. As to fictitious payee, see sect. 7 (3), post, p. 21. As to persons “not having capacity to contract, see sect. 22, post, p. 60. As to fictitious drawer, see sect. 55 (2), post, p. 186. By sect. 41 (2), presentment for acceptance is excused where the drawee is a fictitious person or a person not having capacity to contract by bill. By sect. 45 (2), presentment for payment is excused where the drawee is a fictitious person. By sect. 50 (2), notice of dishonour is dispensed with as regards the drawer where drawer and drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract; and as regards an indorser "where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill. If both drawer and drawee are fictitious persons the bill might, perhaps, be treated as a note made by the first indorser.

6. (1) The drawee must be named or otherwise indicated in a bill with reasonable certainty.2

Address to drawee.


ILLUSTRATIONS. 1. Instrument in the form of a bill, but addressed to no one. B. writes an acceptance thereon. This is not a bill, and B. is not liable as an acceptor ;: but he may be liable as the maker of a note.“

2. Instrument in the form of a bill payable to drawer's order, not containing the name of a drawee,

but expressed to be payable "at No. 1, Union Street, London.” B., who lives there, accepts it. This is a bill, and B. is liable as acceptor."

3. Instrument in the form of a bill. Where the address to the drawee should be are the words “at Messrs. B. & Co.” This is a bill addressed to B. & Co.6

[ocr errors]

| Banco de Portugal v. Waddell (1880), 5 App. Cas. 161, H.L. ; see post,

p. 349.

? Cf. Peto v. Reynolds (1854), 9 Exch. 410, and 11 Exch. 418, Ex. Ch. ; French Code, Art. 110 ; German Exchange Law, Art. 14.

3 Peto v. Reynolds, suprà ; Cf. Edis v. Bury (1827), 6 B. & C. 433.
Fielder v. Marshall (1861), 30 L. J. C. P. 58.
Gray v. Milner (1819), 8 Taunt. 739.
6 Shuttleworth v. Stephens (1808), 1 Camp. 407.

[ocr errors]

As to a fictitious drawee, see sect. 5 (2). The question a

86. raised in Illustration 2 has arisen also in Scotland and in France, and has been decided in the same way: Thompson, 2nd ed., p. 46; Nouguier, $ 131. Speaking of the indication of the drawee, Mr. Justice Story says: “This seems indispensable to the rights, duties, and obligations of all the parties, for the payee cannot otherwise know


whom he is to call to accept and pay the bill ; nor can any other person know whether it is addressed to him or not, and whether he would be justified in accepting and paying the bill on account of the drawer :Story on Bills, $ 58. As to filling up material blanks, see sect. 20, post, p. 49. (2) A bill may be addressed to two or more Several

drawees. drawees whether they are partners or not, but an order addressed to two drawees in the alternative, or to two or more drawees in succession, is not a bill of exchange."

By sect. 19 (2), post, p. 46, the acceptance of some one or more of several drawees, but not of all, is a qualified acceptance. Though a bill may not be addressed to two drawees in succession, or in the alternative, it may name a drawee in case of need: see sect. 15; but his status is wholly different from that of an ordinary drawee. Alternative or successive drawees would give rise to difficulty as to the recourse if the bill was dishonoured. This difficulty does not arise in the case of a note, consequently the makers of a note may be liable jointly, or jointly and severally, according to its tenour (sect. 85), while the acceptors of a bill can only be liable jointly. A note payable in the alternative by one of two makers is invalid.?

7. (1) Where a bill is not payable to bearer, Certainty the payee must be named or otherwise indicated required as to

payee. therein with reasonable certainty.

Cheques are commonly drawn payable to bearer, bills but rarely so.


“ There canngt be

I Cf. Jackson v. Hudson (1810), 2 Camp. at p. 448. a series of acceptors.”

· Perris v. Bond (1821), 4 B. & Ald. 679

« PreviousContinue »