(h) See per Watson, B., in Kearney v. West Granada Gold and Silver Mining Company, 1 H. & N. 412; Story on Bills, sect. 226. (j) See Story on Bills, sect. 226; Byles on Bills (13th Edition), 394. CONFLICT OF LAWS. SS. 71, 72. Rules as to sets. laws conflict. 72.—Where a bill drawn in one country is negotiated, Rules where accepted, or payable in another, the rights, duties, and liabilities of the parties thereto are determined as follows (a): (1.) The validity of a bill as regards requisites in form Ind. Act, s. 134. is determined by the law of the place of issue, and the validity as regards requisites in form of the supervening contracts, such as acceptance, or indorsement, or acceptance suprà protest, is determined by the law of the place where such contract was made (b). Provided that (a) Where a bill is issued out of the United Kingdom, it is not invalid by reason only that it is not (b) Where a bill, issued out of the United Kingdom, (2.) Subject to the provisions of this Act, the inter- Ind. Act, s. 134. a bill, is determined by the law of the place where Provided that where an inland bill is indorsed in a foreign country, the indorsement shall as regards the payer be interpreted according to the law of the United Kingdom (h). (3.) The duties of the holder with respect to present- Ind. Act, ment for acceptance or payment and the necessity for or ss. 134 & 135. S. 72. Rules where laws conflict. Ind. Act, s. 135. sufficiency of a protest or notice of dishonour, or otherwise, are determined by the law of the place where the act is done (j) or the bill is dishonoured (k). (4.) Where a bill is drawn out of but payable in the United Kingdom, and the sum payable is not expressed in the currency of the United Kingdom, the amount shall, in the absence of some express stipulation, be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable (7). (5) Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable (m). (a) See Story's Conflict of Laws (8th Edit.), Chapter VIII.; also Byles on Bills (13th Edit.), pp. 400, 401. (b) The general rule established ex comitate et jure gentium is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract, unless the parties have a view to a different kingdom, that is to say, unless the contract is to be performed in another place, then it is to be governed by the law of the place where it is to be performed, Robinson v. Bland, 1 W. Blackstone, 258 (per Lord Mansfield, C.J.); Gibbs v. Fremont, 9 Ex. 25; Scott v. Pilkington, 2 B. & S. 11; 31 L. J. Q. B. 81; or unless it is forbidden in or contrary to the public policy of the country where it is made, Forbes v. Cochrane, 2 B. & C. 471; Hope v. Hope, 8 De G. M. & G. 731; 26 L. J. Ch. 417. So also as to bills or notes, their validity as regards requisites in form is, as provided in this section, determined by the law of the place of issue. All the various provisions of this section are founded upon the abovementioned principles. (c) "No country," said Lord Mansfield, C.J., "takes notice of the revenue laws of another," Holman v. Johnson, Cowp. at p. 343. See also Story on Bills, p. 150, note; Bristow v. Sequeville, 5 Ex. 279 (where it was held that if a bill be void without a stamp in the foreign country, it cannot be enforced here), following Clegg v. Levy, 3 Camp. 166. (d) See note (b) hereto; also Allen v. Kemble, 6 Moo. P. C. C. 314; remarked on in Rouquette v. Overmann, L. R. 10 Q. B. at p. 540. (e) See note (b) hereto. See also Trimby v. Vignier, 1 Bing. N. C. 151; 6 C. & P. 25; Bradlaugh v. De Rin, L. R. 3 C. P. 538; 5 C. P. 473; and the remarks about this last case in Story's Conflict of Laws, 8th Ed., p. 440, n. But see the exception in the latter part of this sub-section and note (h). (ƒ) See note (b) hereto. The acceptor cannot be made liable under any law but his own, Rouquette v. Overmann, L. R. 10 Q. B. at p. 536. See also Burrows v. Jemino, 2 Stra. 733; Sprowle v. Legge, 1 B. & C. 16; Kearney v. King, 2 B. & Ald. 301. But if a bill is made payable at a particular place the contract of acceptance is governed by the law of acceptance at that place; see the cases on the question of the lex loci solutionis in the note (b) hereto. (g) See note (ƒ) hereto. (h) So decided in Lebel v. Tucker, L. R. 3 Q. B. 77; Bradlaugh v. De Rin, L. R. 5 C. P. 473; 39 L. J. C. P. 254. See the observations upon these two cases in Story's Conflict of Laws, 8th Ed., p. 440, n., where he says that Lebel v. Tucker is clearly correct. (j) See Burrows v. Jemino, 2 Stra. 733; Wilkinson v. Simson, 2 Moo. P. C. C. 275; Potter v. Brown, 5 East, 124; Allen v. Kemble, 6 Moo. P. C. C. 314; Ralli v. Dennistoun, 6 Ex. 483; Symons v. May, 6 Ex. 707; see also Bartley v. Hodges, 30 L. J. Q. B. 352; Ellis v. M'Henry, L. R. 6 C. P. at p. 234; Rouquette v. Overmann, L. R. 10 Q. B. at p. 535. (k) See Rothschild v. Currie, 1 Q. B. 43; Hirschfield v. Smith, 35 L. J. C. P. 177; L. R. 1 C. P. 340. "The liability of each of the contracting parties to the other is to be determined by the law of the country in which the contract was made," per Brett, L.J., in Horne v. Rouquette, 3 Q. B. D. at p. 520. (7) See Story's Conflict of Laws, 2nd Ed., p. 426; Hirschfield v. Smith, 35 L. J. C. P. 177; L. R. 1 C. P. 340. (m) See Rouquette v. Overmann, L. R. 10 Q. B. at p. 535. S. 72. Rules where laws conflict. PART III S. 73. Cheque defined. CHEQUES ON A BANKER. 73.-A cheque is a bill of exchange drawn on a banker payable on demand (a). Except as otherwise provided in this Part, the proviInd. Act, ss. 6 sions of this Act applicable to a bill of exchange payable on demand apply to a cheque (b). & 19. (a) By sect. 3, sub-sect. 1, a bill of exchange payable on demand is defined to be "an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand a sum certain in money to or to the order of a specified person or to bearer." Substituting the word "banker" in this definition where necessary, we have the following definition of a cheque :-"A cheque is an unconditional order in writing, addressed by a person to a banker, signed by the person giving it, requiring the banker to whom it is addressed to pay on demand a sum certain in money to or to the order of a specified person or to bearer." As to the different terms in this definition, see sect. 3, and the notes thereto. As to the relation between banker and customer see note to sect. 2. A cheque may be ante-dated or post-dated, or it may be dated on a Sunday; sect. 13, sub-sect. 2, of this Act. There is now no minimum limit for which a cheque may be drawn. As to the old law on the subject, see Byles on Bills, 13th Edit., 17. It may happen that the sum written in words is different from the sum expressed in figures. In that case the law is the same now (sect. 9, sub-sect. 2) as it was before this Act, namely, that the sum denoted by the words is the amount payable, Saunderson v. Piper, 5 Bing. N. C. 425; 7 Scott, 408. In America the rule is that the figures in the margin are merely a memorandum for convenience of reference, and form no part of the bill or cheque, and an alteration in them making them conform to the body of the instrument, does not vitiate the instrument; see Parsons on Notes, vol. 1, p. 28, note (w). In the recent case of Garrard v. Lewis, 10 Q. B. D. 30; 47 L. T. N. S. 408; 31 W. R. 475, it was held that where a bill was signed in blank with marginal figures only, the bill was not a perfect bill, till the amount in the body was filled in, and hence that an alteration, however fraudulent, of the marginal figures does not vitiate the bill for the full amount inserted in the body, when in the hands of a holder in due course, who has no notice of the improper alteration. If the words are written in the body of the cheque so obscurely that their meaning is doubtful, the figures in the margin and the stamp may be referred to as shewing the intention of the parties, Hutley v. Marshall, 46 L. T. N. S. 186; so held also in America in Riley v. Dickens, 19 Ill. 29. Where both the sum mentioned in the body and the sum mentioned in the margin or at the foot are expressed in figures, and there is a discrepancy between the two, there is a patent ambiguity on the face of the cheque, and evidence cannot be produced to explain what sum was intended to be payable (Saunderson v. Piper, supra), and the question arises for which sum is the cheque to be taken as drawn. It is submitted that in such a case the amount expressed in the body of the cheque, though in figures, would, on the authority of Garrard v. Lewis (supra), be the amount for which the cheque would be payable. An omission in the body may be aided by figures in the margin, where they are not contradictory, as for instance, where the sum was in the body expressed to be "twenty-five, seventeen shillings, and three pence," the figures in the margin being “25,, 17,, 3,” the Court held the sum to be twenty-five pounds, seventeen shillings and three pence, Phipps v. Tanner, 5 C. & P. 488, Tindal, C.J., saying, it must mean pounds, it cannot mean anything else; again, where "fifty" was put in the body, the word "pounds" being omitted, while £50 was in the margin, Elliot's Case, 1 Leach, 175. A mere slip, which renders the statement of the sum payable merely inaccurate, will not invalidate a cheque. For instance, an instrument which stated "pay A. B. seventeen, or bearer pounds," was held good for £17 payable to A. B. or bearer; R. v. Boreham, 2 Cox, C. C. 189; see also Burnham v. Allen, 67 Mass. Rep. 496, where the note was expressed to be for "three hundred dollars," and the figures in the margin were "$300," it was held that the note was good for three hundred dollars. A cheque must be signed by the party drawing it; see sect. 3, note (w), and sect. 23. The drawer's initials will be sufficient, Merchant's Bank v. Spicer, 6 Wend. 443, which was a decision in America that an indorsement by initials was sufficient to charge the indorser; though, of course, the banker on whom the cheque is drawn would not be liable, if he refused to pay such a cheque, unless he knew whose the initials were, or had usually paid the drawer's cheques so signed. A cheque of any sort may now be post-dated; see sect. 13, sub-sect. 2. As to the old law upon this point, see Fisher on the Stamp Act, 1870. If a person takes a cheque, whether payable to order or to bearer, that is post-dated, with know S. 73. Cheque defined. |