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S. 7. Certainty required as to payee.
person who is capable of being ascertained at the time the instrument is drawn. It has also been held that there must be a payee ascertained by name or designation, per Jervis, C. J., in Cowie v. Stirling, 6 E. & B. 333; see also Reynolds v. Peto, 11 Ex. 418; Gray v. Milner, 8 Taunt. 739. Where the name is spelt wrong, or the payee wrongly designated, the payee may indorse the bill as therein described, adding, if he think fit, his proper signature; sect. 32, subs. 4. So where a note was made payable "to trustees” without naming them, that was sufficient; Holmes v. Jaques, L. R. 1. Q. B. 376 ; Megginson v. Harper, 2 Cr. & M. 322; see also Soares v. Glyn, 8 Q. B. 24. Where a man and his son are of the same name, the instrument is payable to the father, unless the contrary is shewn, Sweeting v. Fowler, 1 Stark. 106. If a bill or note be made payable to a specified person, the words “ to his order” may with the consent of the parties be added without rendering the instrument invalid, Kershaw v. Cox, 3 Esp. 246.
(b) See Megginson v. Hurper, 2 Cr. & M. 322; Holmes v. Jaques, L. R. 1 Q. B. 376.
(c) In Watson v. Evans, 32 L. J. Ex. 137; 1 H. & C. 662, it was decided that the following instrument was a promissory note, and that the three persons mentioned therein could jointly maintain an action thereon, viz.: “On demand we jointly and severally promise to pay to Messrs. Joseph Watson, Thomas Southern, and Daniel Mayer, or to their order, or the major part of them, the sum of one hundred pounds, &c., &c.”
(d) In Robertson v. Sheward, 1 M. & G. 511; 1 Scott N. R. 419, an instrument payable to the manager of the National Provincial Bank of England was held to be a good note; see also Megginson v. Harper, 2 Cr. & M. 322, cited in note (a) to this section. But in Yates v. Nash, 29 L. J. C. P. 306 ; 8 C. B. N. S.581, an instrument drawn payable to the treasurer for the time being of the Commercial Travellers' Benevolent institution was held not to be a bill of exchange. But this decision and that in Cowie v. Sterling, 6 E. & B. 333, would seem to be now overruled by this subsection of this section, under which a bill or a note may be made payable to the holder of an office for the time being.
(e) As to such a bill see Minet v. Gibson, 3 T. R. 481; Tatlock v. Harris, 3 T. R. 174; Vere v. Lewis, 3 T. R. 182; see also sub-sect. 3 of sect. 8 of this Act and the notes thereto. As regards fictitious payees, it was once held that where a bill is drawn payable to a fictitious person or bis order, it is neither in effect payable to the order of the drawer nor to bearer, Bennett v. Farnell, 1 Camp. 130. But in Minet v. Gibson, 3 T. R. 481, it was held that where at the time of the acceptance the payee is known to be a fictitious person, the bill is really payable to bearer; and this was foilowed in a later case, where knowledge was held immaterial, as a bill payable to a fictitious payee is payable to bearer; Phillips v. Im-Thurm, L. R. 1 C. P. 463 ;
35 L. J. C. P. 220. Where a bill was drawn payable to a person SS. 7, 8. for money belonging to him and was indorsed to such
Certainty at the time of such indorsement was, but was not known to be dead, required as to it is competent to the administrator to elect to take the bill as payee. payment, Murray v. The East India Company, 5 B. & Ald. 204.
8. (1.) When a bill contains words prohibiting transfer, What bills are or indicating an intention that it should not be transfer negotiable. able, it is valid as between the parties thereto, but it is not negotiable (a).
(2.) A negotiable bill may be payable either to order or to bearer (6).
(3.) A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank (c).
(4.) A bill is payable to order which is expressed to be 80 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 (d).
(5.) Where a bill, either originally or by indo, sement, 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 (e).
(a) It has hitherto been held that a bill or note is not negotiable which is payable neither to order nor to bearer, Smith v. Kendall, 6 T. R. 123; Plimley v. Westley, 2 Bing. N. C. 251; where in 1 Hodges, 325, it is said that an indorsee can only sue the maker on a negotiable note. These decisions would seem to be overruled by this, and the fourtb sub-section of this section.
(b) If the bill or note be made payable to order, it is assignable by indorsement; but as is provided by section 2 of this Act the indorsement must be completed by delivery. If the bill or note be made payable to bearer, it is assignable by mere delivery. It has been held that the addition, after issue, of the words “to his order” with the consent of the parties to a bill or note will not render the instrument invalid, Kershaw v. Cox, 3 Esp. 246.
(c) See Minet v. Gibson, 3 T. R. 481; Phillips v. Im-Thurn, L. R. 1 C. P. 463.
(d) See note (a) to this section and note (n) to section 3 of this Act.
(e) Where a bill was made payable to the drawer's order, it was held to be payable to himself, Smith v. McClure, 5 East, 476.
9.-(1.) The sum payable by a bill is a sum certain Sums payable. (%) within the meaning of this Act, although it is required Ind. Act, s. 5.
to be paid.
(a) With interest (y).
default in payment of any instalment the whole
shall become due (w). (d) According to an indicated rate of exchange, or
according to a rate of exchange to be ascertained as
directed by the bill (v). Ind. Act, s. 18. (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 (t).
(3.) Where a bill is expressed to be payable with interest, unless the instrument otherwise provides, interest runs from the date of the bill (s), and if the bill is undated, from the issue thereof (r).
(2) See note (P) to sect. 3 of this Act.
(y) As to bills payable with interest, see Warrington v. Early, 2 E. & B. 763; Ayrey v. Fearnsides, 4 M. & W. 168; Bolton v. Dugdale, 4 B. & Ad. 619. And the rate of interest must be fixed, see Tennent v. Crawford, Court of Sess. Cas., 4th Series, Vol. V., p. 433.
(x) As to bills payable by instalments see Worley v. Harrison, 3 A. & E. 669; and Oridge v. Sherborne, 11 M. & W. 374.
(w) In Carlon v. Kenealy, 12 M. & W. 139, an instrument stipulating the amount to be payable by instalments, with a proviso that on default of one instalment the whole amount of the balance remaining unpaid should become due, was held to be a good promissory note; see also Moffat v. Edwards, C. & M. 16; Cooke v. Horne, 29 L. T. N. S. 369.
(v) “Foreign bills are commonly drawn at one, two, or more usances, or, as it is sometimes expressed, at single, double, treble, or half
Usance signifies the usage of the countries between which bills are drawn with respect to the time of payment. If a foreign bill be drawn, payable at sight, or at a certain period after sight, the acceptor will be liable to pay according to the course of exchange at the time of acceptance, unless the drawer express that it is payable according to the course of exchange at the time it was drawn “ espèces de ce jour,” Byles on Bills (13th edition), 82; see also Pollard v. llerries, 3 B. & P. 335.
SS. 9, 10.
(t) It was so laid down in Sanderson v. Piper, 5 Bing. N. C. 425; 7 Scott, 408 ; see also Garrard V. Lewis, 10 Q. B. D. 30; 47 L. T. N. S. 408; 31 W. R. 475, where it was held that the marginal figures are not an essential part of a bill of exchange; although such figures will assist any omission in the body, Elliot's Case, 2 East, P. C. 951; or ambiguity, Hutley v. Marshall, 46 L. T. N. S. 186. See also sect. 73 of this Act and note (a) thereto.
(8) So laid down in Doman v. Dibden, Ry. & Moo. N. P. C. 381; Roffey v. Greenwell, 10 A. & E. 222. In Keene v. Keene, 3 C. B. N. S. 144, the Court refused to interfere with the Master, who had allowed 10 per cent. ; the amount specified in the bill, against the drawer. The bill, it seems, ought to be produced, Fryer v. Brown, R. & M. 145 ; Hutton v. Ward, 15 Q. B. 26.
(r) This is new. “ Issue" is, in the second section of this Act, defined to be “the first delivery of a bill or note, complete in form, to a person who takes it as a holder.”
10.-(1.) A bill is payable on demand (x).
at sight, or on presentation (y).
(2) “In strict law no demand is necessary against an acceptor, but in practice a demand is usual, and ought to be made before proceedings are instituted; and it might make a material difference in the costs, if a solvent acceptor, against whom proceedings are instituted without a demand, promptly applies to the Court, McIntosh v. Haydon, Ry. & Moo. N. P. C. 362 (per Abbott, L. C. J.); see also Brush v. Barrett, 82 N. Y. Rep. 400.
(y) It is so provided in sect. 2 of 34 & 35 Vict. c. 74, which is as follows: “Every bill of exchange or promissory note, drawn after this Act comes into operation and purporting to be payable at sight or on presentation, shall bear the same stamp, and shall, for all purposes whatsoever, be deemed to be a bill of exchange or promissory note payable on demand, any law or custom to the contrary notwithstanding.” This statute is repealed by this present Act.
(«) So decided in Whitlock v. Underwood, 3 Dowl. & R. 356; 2 B. & C. 157.
(w) A bill or note assigned in due time on the day of payment is to be considered as assigned before it is due, Byles on Bills (13th edition), p. 170, and Byles on Bills (6th American edition), 269. The
indorsee of an overdue bill or note takes it subject to all its equities, In re European Bank, L. R. 5 Ch. Ap. 362. As to the question whether prior want of consideration is such an equity, in Ex parte Swan, L. R. 6 Fq. 344, Malins, V.C., gave an elaborate judgment, reviewing all the authorities (pp. 358–362), and shewing that until 1808, it was held (Ex parte Lambert, 13 Ves. 179; Brown v. Davies, 3 T. R. 180; Tinson v. Francis, 1 Camp. 19) that such want of consideration was such an equily, but thatt it is not so now. As to the authorities since 1808, Malins, V.C., says, at p. 360:-“These authorities” (Charles v. Marsden, 1 Taunt. 224; Sturtevant v. Ford, 4 M. & G. 101; Stein v. Yglesias, 1 C. M. & R, 565; Oulds v. Harrison, 10 Ex. 572, 578) “have settled the law that an indorsee of a bill of exchange for value after its dishonour, has as good a title against the acceptor as if it had been indorsed to him before maturity, unless there is an equity attaching to the bill itself; and they also show that a right of set-off as between acceptor and drawer is not an equity attached to the bill, which can be enforced against the indorsee ; . . . Burrough v. Moss, 10 B. & C. 558, is a remarkably strong application of the rule that a set-off as between drawer and acceptor cannot be pleaded against the holder who became so after its dishonour.” See also Holmes v. Kidd, 3 H. & N. 891, as to what an equity attached to the bill is. As to when a bill payable on demand is overdue, see sect. 36, sub-s. 3.
11. A bill is payable at a determinable future time (a) within the meaning of this Act which is expressed to be payable.
(1.) At a fixed period (b) after date or sight (c).
(2.) On or at a fixed period after the occurrence of a specified event which is certain to happen (d), though the time of happening may be uncertain.
An instrument expressed to be payable on a contingency (e) is not a bill, and the happening of the event does not cure the defect ($).
(a) See notes (y) and (2) to section 3 of this Act.
(6) The time or event must come or happen, Cooke v. Colehan, 2 Stra. 1217; Roffey v. Greenwell, 10 A. & E. 222; Evans v. Underwood, 1 Wils. 262; Goss v. Nelson, 1 Burr. 226; Clayton v. Gosling, 5 B. & C. 360; Sackett v. Palmer, 26 Barb. 179. So also a bill or note may be made payable by instalments, Worley v. Harrison, 3 A. & E. 669; Oridge v. Sherborne, 11 M. & W. 374. Also with a proviso that on default of one instalment the whole shall become payable on demand, Carlon v. Kenealy, 12 M. & W. 139; Cooke v. Horne, 29 L. T. N. S. 369; Moffat v. Edwards, C. & M. 16.
Bill payable at a future time.
Ind. Act, s. 5.