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indorsed in blank, its negotiability to bearer was not $ 8. affected by a subsequent special indorsement, though the

What bills special indorser was only liable on his indorsement to such

are negoparties as made title through it.?

tiable. See sect. 34, post, p. 110, as to blank indorsements, and converting blank indorsements into special indorsements.

A bill payable " to J. C. or bearer” is of course payable to bearer.

(4) A bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it should not be transferable.

ILLUSTRATION. The acceptor of a bill payable to drawer or order when accepting it strikes out the words or order,” and writes over his acceptance the words “in favour of drawer only." The alteration is immaterial, and the negotiability of the bill is not affected. 3

This sub-section alters the law. Before the Act it was held in England that a bill or note drawn payable to a specified person without the addition of words authorizing transfer, e.g., "Pay C.," was not negotiable. In Scotland it was held that a bill or note was negotiable unless it contained words prohibiting transfer, as, for instance, “Pay C. only." The Act has adopted the Scotch rule; but it is presumed that this provision does not apply to bills or notes made in England before the commencement of the Act.

(5) Where a bill, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.

1 Walker v. Macdonald (1848), 2 Exch. 527.

Smith v. Clarke (1794), Peake, 225 ; Story, § 207. 3 Decroix v. Meyer, (1890) 25 Q. B. D. 343, C. A. affirmed, (1891) A. C. 520, H. L.

* Plimley v. Westley (1835), 2 Bing. N. C. at p. 251 ; Whyte v. Heylman (1859), 3+ Pennsylvania R. 143 ; aliter, as to an indorsement, Edie v. East India Co. (1761), 2 Burr. 1216 ; Cf. Goodwin v. Robarts (1875), L. R. 10 Ex. at p. 357.

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This sub-section is declaratory. It provides that a bill payable" to the order of C.” is in legal effect payable " to C. or order," i.e., that C. can demand payment without giving a responsible indorsement. C. of course is bound to give a receipt to the same extent as any other person who receives payment of money. See an indorsement by way of receipt distinguished by Byles, J., from an ordinary indorsement which is in the nature of a guarantee.?

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Sum payable.

9. (1) The sum payable by a bill is a sum certain within the meaning of this Act, although it is required to be paid

(a) With interest.
(6) By stated instalments.
(c) By stated instalments, with a provision that
upon default in payment of any

instalment
the whole shall become due.3
(d) According to an indicated rate of exchange,

or according to a rate of exchange to be ascertained as directed by the bill.

ILLUSTRATIONS.

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1. Bill for 1001. payable “with lawful interest.” Valid."

2. Bill for 1001. payable by two equal instalments due 1st January and 1st July. Valid.5

3. Bill for 1001. payable" by instalments,” not specifying dates or amounts. Invalid.6

4. Bill for 1001. payable" by ten equal instalments payable, &c., all instalments to cease on the death of X." Invalid.

1 Smith v. M'Clure (1804), 5 East, 476 ; Cf. Harvey v. Cane (1876), 34 L. T. N. S. 64.

? K’eane v. Beard (1860), 8 C. B. N. S. at p. 382.
3 Carlon v. Kenealy (1843), 12 M. & W. 139.
* Cf. Warrington v. Early (1853), 2 E. & B. 763 ; 23 L. J. Q. B. 47.

6 Carlon v. Kenealy (1843), 12 M. & W. 139; Gaskin v. Davis (1860), 2 F. & F. 294. Days of grace must be added to the instalment due-dates. Oridge v. Sherborne (1843), 11 M. & W. 374.

6 Moffatt v. Edwards (1841), Car. & M. 16.
7 Worley v. Harrison (1835), 3 A. & E. 669.

5. Bill for 1001., or for 1,000 francs, payable “at exchange as 8 9. per last indorsement.” Valid.

6. Bill for 1001. payable in Paris or London, at the choice of Sum payable. the holder, according to the course of exchange upon Paris.” Valid.'

By sect. 3, a bill must be drawn for “a sum certain " in money. When the rate of interest is not expressed, five per cent. is understood. Since the abolition of the Usury Laws there is no limit in England as to the rate of interest the parties may agree upon. In many American states and continental countries usury laws are still in force.

The indorsement of a rate of exchange without authority is a material alteration which may avoid a bill. See a statement of the practice as to the sale of foreign bills, and the mode of fixing the exchange in Suse v. Pompe.3

In the absence of indication given by the bill, when a bill is drawn in one country and payable in another, and the sum payable is expressed in the currency of the former, the amount the holder is to receive must be calculated according to the rate of exchange on the day that the bill is payable.* For fiscal purposes a different rule necessarily prevails (see sect. 6 of the Stamp Act, 1891, post, p. 353), which makes the date of the instrument the critical date for determining the amount of the stamp.

In the old case of Da Costa v. Cole, a bill was drawn in England on Portugal, and expressed to be payable in “rees, that is, in Portuguese currency. Between the time of issue and payment the Portuguese currency was depreciated. It was held that the holder was entitled to be paid according to the former value. This decision seems inconsistent with modern rules, and especially appears to conflict with the case of Rouquette v. Overmann, where it was held that the time of payment might be deferred by ex post facto legislation.

The following instruments would be invalid as bills or Uncertain notes, as not being for sums certain within the meaning of sum,

6

I Cf. Pollard v. Herries (1803), 3 B. & P. 335, prom. note.

2 Hirsch field v. Smith (1866), L. R. 1 O. P. 340. See sect. 64 as to alterations.

3 Suse v. Pompe (1860), 8 C. B. N. S. at p. 542 ; 30 L. J. C. P. 75.

* See sect. 72 (4), post, p. 243; and Hirschfield v. Smith (1866), L. R. 1 C. P. at p. 353 ; Belgian Code, Art. 33.

5 Da Costa v. Cole (1688), Skinner, 272, holder v. drawer. 6 Rouquette v. Overmann (1875), L. R. 10 Q. B. 525.

§ 9.

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sect. 3, namely :- An order to pay C. “1001. and all other sums which may be due to him ; or an order to pay C.

the proceeds of a shipment of goods value 2,0001., consigned by me to you; or an order to pay C. “the balance due to me for building the Baptist College Chapel ; "3 or a promise to pay C. “1001. and the demands of the Sick Club; "4 or “1001. and all fines according to rule.”5

The Italian Code, Art. 252, prohibits bills or notes being made payable by instalments, and Art. 254 makes stipulations for interest inoperative.

(2) Where the sum payable is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the amount payable.

Discrepancy in words and figures.

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ILLUSTRATIONS. 1. A bill is drawn, “Pay to the order of C. two hundred pounds." In the margin is superscribed 2501. This is a bill for 2001. only..

2. Bill on sufficient stamp for “one hundred pounds,” with 107. in the margin. The sum payable is 1001.7

3. A bill is drawn, “Pay to the order of C. one hundred." In the margin is inserted 1001. This is a bill for 1001.8

4. Bill in the form, “Pay to my order, twenty-five, ten shillings.” This is sufficient as a bill for 251. 108.9

German Exchange Law, Art. 5, provides, that if the amount be expressed both times in figures or both times in words, and there is a discrepancy, the smaller sum is the amount payable. If a bill ran simply, “Pay to my order £ , evidence would be inadmissible to show the sum for which it was intended to be drawn; 10 but an instrument in this form would be a primâ facie authority to

Smith v. Nightingale (1818), 2 Stark. 375.
2 Jones v. Simpson (1823), 2 B. & C. 318.
3 Crowfoot v. Gurney (1832), 9 Bing. 372.
4 Boltun v. Dugdale (1833), 4 B. & Ad. 619.
Ayrey v. Pearnsides (1838), 4 M. & W. 168.

Saunderson v. Piper (1839), 5 Bing. N. C. 425 ; German Exchange Law, Art. 5.

7 Cf. Garrard v. Lewis (1882), 10 Q. B. D. 30, at pp. 34, 35; Story, § 42.
8 R. v. Elliot (1777), 1 Leach, C. C. 175.
9 Phipps v. Tanner (1833), 5 C. & P. 488.

10 Norwich Bank v. Hyde (1839), 13 Connecticut, 279; Cf. Saunderson v. Piper (1839), 5 Bing. N. C. at p. 431.

the holder to fill in any sum the stamp would cover.

See

§ 9. sect. 20, post, p. 49.

The Italian Code, Art. 291, provides that in case of discrepancy the smaller sum is the sum payable, and this is the practice followed by bankers in England in respect of cheques.

(3) Where a bill is expressed to be payable Calculation of with interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof.

interest.

ILLUSTRATIONS. 1. Bill for 2001., payable six months after date with interest. The sum payable at maturity is 2051."

2. B. makes a note expressed to be payable with interest one year after his death. Interest runs from the date of the note.

See “issue" defined by sect. 2, ante, p. 6. Interest proper, payable by the instrument itself, must be distinguished from interest by way of damages payable on its dishonour. As to the latter, see sect. 57, post, p. 190. The interest reserved does not affect the stamp."

10. (1) A bill is payable on demand

(a) Which is expressed to be payable on demand, or at sight, or on presentation; or

(6) In which no time for payment is expressed.

Clause (a) reproduces the effect of the repealed 34 & 35 Vict. c. 74. Before that enactment it was doubtful whether or no days of grace attached to bills expressed to be payable " at sight” or “on presentation.” By virtue of sect. 14,

" post, p. 35, days of grace do not attach to bills payable on demand.

A post-dated cheqne may be stamped as a bill payable on demand ; 5 and when the time arrives, it is, of course,

Bill payable on demand.

1 Doman v. Dibdin (1826), R. & M. 381.

2 Roffey v. Greenwell (1839), 10 A. & E. 222 ; cf. Richards v. Richards (1831), 2 B. & Ad. 447, before the Married Women's Property Act.

3 Cf. Ex p. Charman, Re Claggett, W. N. 1887, p. 184, C. A. 4 Pruessing v. Ing (1821), 4 B. & Ald. 204.

Gatty v. Pry (1877), 2 Ex. D. 265; Royal Bank of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A.

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