§ 10.

Bill payable at a future, time.

payable without grace; but for many purposes it is equivalent to a bill payable after date.

As regards instruments payable on demand, see sect. 36 (3), when overdue; sect. 45 (2), presentment for payment; sect. 60, forged indorsement; sect. 73, cheque ; and sect. 86, as to notes.

(2) Where a bill is accepted or indorsed when it is overdue, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand.

Before this enactment the English law on the subject dealt with was very obscure; but it had been held in the United States that where a bill was indorsed after maturity, the indorser was entitled to have it presented for payment, and to receive notice of dishonour in the event of nonpayment, within a reasonable time. Aliter, if an indorser took up a dishonoured bill, and re-issued it on his original indorsement, for his liability was then already fixed. The present clause gives effect to the American rule. As to the rights of the transferee of an overdue bill against parties liable thereon before its maturity, see sect. 36, post, p. 116. Under German Exchange Law, Art. 16, the indorser of a protested bill incurs no mercantile engagement. See, too, Italian Code, Art. 260.

11. A bill is payable at a determinable future time within the meaning of this Act which is expressed to be payable :*

(1) At a fixed period after date or sight.

See sect. 14 (2), (3), as to fixing the due date of such bills in ordinary cases, and sect. 65 (5) as to the due date when accepted for honour.

1 See note to sect. 13 (2); and Forster v. Mackreth (1867), L. R. 2 Ex. 163.

2 Patterson v. Todd (1852), 18 Pennsylvanian R. 433; Essenlow v. Dillenback (1878), 22 Hun. R. 23; Cf. Dehers v. Harriot (1682), 1 Show. 164; Mutford v. Walcot (1698), 1 Ld. Raym. 574, as to acceptor.

3 St. John v. Roberts (1865), 31 New York R. 441.

4 By sect. 3, ante, p. 8, a bill must be payable either on demand or at a fixed or determinable future time.

(2) On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening may be uncertain.1

An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect.

ILLUSTRATIONS.

The following are valid, viz., orders to pay :

1. Ten days after the death of X.2

2. Two months after H.M. ship Swallow is paid off.3
3. On the 1st January, when X. comes of age.3
4. One year after notice.*

6. Two months after demand in writing."

7. Five years after the opening of the S. railway." (?) The following are invalid, viz., orders to pay :—

8. When I marry X.

9. When I am in good circumstances."

10. Thirty days after the arrival of ship Swallow at Calcutta.10

11. Ninety days after sight, or when realized."

12. Ninety days after the dissolution of partnership between C. and X. and the settling of the books.12

"Certainty," says Ashhurst, J., "is a great object in negotiable instruments, and unless they carry their own validity on the face of them they are not negotiable. On that ground bills which are only payable on a contingency

1 See Colehan v. Cooke (1742), Willes, 393, at p. 399; Carlos v. Fancourt (1794), 5 T. R. 482.

Colehan v. Cooke (1742), supra.

3 Goss v. Nelson (1757), 1 Burr. 226.

4 Clayton v. Gosling (1826), 5 B. & C. 360.

5 Roffey v. Greenwell (1839), 10 A. & E. 222.

6 Price v. Taylor (1860), 5 H. & N. 540; 29 L. J. Ex. 331.

7 Cf. Ex parte Gibson (1869), L. R. 4 Ch. 662. No objection raised.

See contra, Blackman v. Lehman (1879), 35 Amer. R. 57.

8 Pearson v. Garret (1689), 4 Mod. 242.

• Ex parte Tootell (1798), 4 Ves. 372.

10 Palmer v. Pratt (1824), 2 Bing. 185.

11 Alexander v. Thomas (1851), 16 Q. B. 333.

12 Sackett v. Palmer (1857), 25 New York R. 179.

§ 11.

§ 11.

Omission of date in bill payable after date, or acceptance after sight.

are not negotiable, because it does not appear on the face of them whether or not they will ever be paid." Under the French Code, Art. 129, and German Exchange Law, Art. 4, such forms as are given in Illustrations 1 to 6 would probably be invalid. A bill, however, may be made payable at a particular fair or market (en_foire), though the day on which it will be held is not known. Such bills seem to have been anciently known in England as "billæ nundinales." 2

12. Where a bill expressed to be payable at a fixed period after date is issued undated, or where the acceptance of a bill payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the bill shall be payable accordingly.

Provided that (1) where the holder in good faith and by mistake inserts a wrong date, and (2) in every case where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course the bill shall not be avoided thereby, but shall operate and be payable as if the date so inserted had been the true date.

See "issue" and "holder," defined by sect. 2; "good faith" by sect. 90, and "holder in due course by sect. 29.

This section was added in committee. Before its enactment the English law on the subject dealt with was very obscure. When a bill comes from a foreign country undated the holder frequently cannot know the exact intended date. He knows when the mail left, but does not know on what previous day the bill was issued. The present section throws any possible inconvenience that may arise on the negligent party who omitted to date the bill or acceptance. In Scotland, under the 19 & 20 Vict.

1 Carlos v. Fancourt (1794), 5 T. R. at p. 486.

2 Cf. Colehan v. Cooke (1742), Willes, at p. 399. See French Code, Art. 133; German Exchange Law, Art. 33; Italian Code, Art. 252.

c. 60, s. 10, now repealed, oral evidence might be given to prove the true date. See sect. 20, post, p. 49, for the general rule as to material omissions in a bill, and the consequences of supplying them, and sect. 64 as to material alterations.

German Exchange Law, Art. 4, requires a bill to be dated; so does the French Code, Art. 110. Pothier, writing before the Code, says, "Want of a date, or a mistake therein, cannot be taken advantage of by the drawer of a bill, or by the drawee if he accepts it." Cf. Italian Code, Art. 263.

French Code, Art. 122, provides that if a bill be payable after sight and the acceptance be not dated, time runs from the date of the bill; but see Nouguier, § 498. Art. 115 of the Netherlands Code contains a similar provision.

§ 12.

as to date

date.

13. (1) Where a bill or an acceptance or any Presumption indorsement on a bill is dated, the date shall, being true unless the contrary be proved, be deemed to be the true date of the drawing, acceptance, or indorsement, as the case may be.

This sub-section is declaratory of the common law.1 Inasmuch as the bankruptcy laws are expressly saved by sect. 97 (1), the Act presumably does not affect the rule that when a bill is tendered in bankruptcy proceedings as evidence of the petitioning creditor's debt, the date of the bill must be confirmed by independent evidence.2

The prima facie presumption arising from the date may be rebutted, e.g. for the purpose of ousting the Statute of Limitations.3

post-dating,

(2) A bill is not invalid by reason only that it Ante-dating, is ante-dated or post-dated, or that it bears date and Sundays. on a Sunday.

ILLUSTRATIONS.

1. B. gives a blank acceptance in 1857. The drawer, by inadvertence, fills it up as a bill dated 1856. The holder can recover from the acceptor.*

C.

1 Roberts v. Bethell (1852), 12 C. B. at p. 778.

2 Cf. Anderson v. Weston (1840), 6 Bing. N. C. at p. 301.

3 Cf. Montague v. Perkins (1853), 22 L. J. C. P. 187.

4 Armfield v. Allport (1857), 27 L. J. Ex. 42.

D

§ 13.

Computation of time of payment.

2. A bill, bearing date 1st May, is endorsed by the payee to D. It appears that the payee died in the previous April. D. may show that the bill was post-dated, and he can then recover from the parties liable thereon.1

The Acts which for fiscal purposes prohibited the postdating of cheques or bills payable on demand were repealed by the Stamp Act, 1870. To ascertain whether under the stamp law the instrument is admissible in evidence only the terms of the instrument itself need be regarded; and the fact that a cheque is post-dated does not make it irregular within the meaning of sect. 29 (1) so as to charge the holder with equities of which he had no notice. For many purposes it is clear that a post-dated cheque is equivalent to a bill payable after date. The drawer of a post-dated cheque is under no obligation to stop payment of it for the benefit of a third person, e.g. the payee's trustee in bankruptcy. Bankers licensed under 9 Geo. 4, c. 23, are, by sect. 12, liable to a penalty for issuing post-dated bills or notes unstamped; and under the suspended Act 7 Geo. 4, c. 6, there was a penalty for post-dating bills under 51.

To ante-date a deed in order to defraud a third party is a forgery; and the same principle would doubtless apply to bills and notes.

In Begbie v. Levi, decided in 1830,8 the Court seemed to think that a bill issued on a Sunday would be void in the hands of a holder with notice, but they suggested qualifi

cations.

14. Where a bill is not payable on demand,9 the day on which it falls due is determined as follows:

1 Pasmore v. North (1811), 13 East, 517; Camp. 97.

Usher v.

Dauncey (1814), 4

2 Gatty v. Fry (1877), 2 Ex. D. 265. See Royal Bank of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A., decided on the Stamp Act, 1891.

3 Ibid., and Bull v. O'Sullivan (1871), L. R. 6 Q. B. 209, at p. 213. 4 Hitchcock v. Edwards (1889), 60 L. T. N. S. 636; Royal Bank of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A.

5 Forster v. Mackreth (1867), L. R. 2 Ex. 163.

As to bills which were

6 Ex parte Richdale (1882), 19 Ch. D. 409, C. A. 7 R. v. Ritson (1869), L. R. 1 C. C. R. 200. ante-dated to defraud creditors, see Re Gomersall (1875), 1 Ch. D. 137, C. A.; Jones v. Gordon (1877), 2 App. Cas. 625.

8 Begbie v. Levi (1830), 1 Cr. & J. 180.

9 As to when a bill is in legal effect payable on demand, see sect. 10, ante,