character as such on its face, or may even purport to be an inland bill, the holder in such cases is given an option to protest it, or to treat it as an inland bill and charge the drawer and indorsers without protesting it. If an inland bill purport to be a foreign bill, the holder need not, though it seems he may, protest it."

In the case of international foreign bills, a usage of long. standing has existed, arising from the difficulty of communication in former times between different nations and the danger of loss in transmission. It is to draw the bill in a set of three or four parts, each a counterpart of the other, except that in each part of the set is incorporated a condition that that particular bill shall be payable only provided all the others remain unpaid. This condition operates as a notice to the acceptor to accept and pay but one bill, and he and the drawer are liable upon but one bill; for it is wellsettled law that a payment of one of a set operates as a discharge of the rest. The whole set collectively is deemed to amount to but one bill.10 The rule that a payee or subsequent indorser, who indorses two or more parts of a bill to separate indorsees, is liable on indorsement to each separate indorsee operates as a check to the improper circulation of the bill. The transferor is bound to pass over upon transfer all parts of the bill in his possession, and thus the circulation of these instruments may be effected with safety.12

is not required; but by the law of Illinois the bill is a foreign bill, and protest is necessary. According to the doctrine of Amsinck v. Rogers, supra, protesting would be necessary. Under B. E. A. § 72 (subd. 3), it would not be.

8 This is the interpretation of B. E. A. § 4, from which N. I. L. § 129, is copied, suggested by its draftsman. Chalmers, Bills (7th Ed.) 17; Russell, Bills, 104, 105. But see Maclaren, Bills (4th Ed.) 85, 86. N. I. L. §§ 129, 152 (last sentence); Chalmers, Bills (7th Ed.) 17. See Lennig v. Ralston, 23 Pa. 137.

10 N. I. L. §§ 178, 183; Caras v. Thalmann, 138 App. Div. 297, 123 N. Y. Supp. 97 (N. I. L.); Casper v. Kuhne, 159 App. Div. 389, 144 N. Y. Supp. 502 (N. I. L.).

11 N. I. L. § 180; Holdsworth v. Hunter, 10 Barn. & C. 449. So, if the drawee accepts more than one part, he is liable on each to a bona fide holder. N. I. L. § 181.

12 Pinard v. Klockmann, 3 Best & S. 388, 32 Law J. Q. B. 82. See NORT.B.& N.(4TH ED.)-3

DEFINITION AND FORM OF NOTE

13. A promissory note is an unconditional written promise, signed by the maker, to pay absolutely and at all events a sum certain in money.13

A common form of note is:

New York

$500.00.

Buffalo, June 15, 1891.

Thirty days after date I promise to pay to the order of
JOHN SMITH Five Hundred Dollars, value received, at
Bank of Buffalo.
THOMAS ROBINSON.

The parties to the foregoing note are technically termed:

(a) MAKER-The person who signs the note and makes the promise; e. g. (Thomas Robinson.) (b) PAYEE—The person in whose favor the promise contained in the note is made; e. g. (John Smith.)

The foregoing are parties to the note in its origin. There are also subsequent parties. They are:

(a) HOLDER-The person having legal possession of the instrument, who, when it is negotiable, may recover the amount of same. This term includes payee, indorsee, and bearer.

(b) INDORSER-One who directs the amount of the bill or note to be paid to a person in the indorsement named, or to his order, or to bearer.

(c) INDORSEE-One who makes title to the instru ment through the order specified in the indorse

ment.

N. I. L. § 182. N. I. L. § 179, provides: “Where two or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues is as between such holders the true owner of the bill. But nothing in this section affects the rights of a person who in due course accepts or pays the first part presented to him." 18 See N. I. L. § 184. See, also, p. 29, note 2, supra.

ESSENTIALS OF BILL OR NOTE

14. To be a negotiable bill of exchange or promissory note, the instrument must have the following essential

characteristics:

(a) The bill must contain an order.

(b) The note must contain a promise.

(c) The order or promise must be unconditional.

(d) It must be an absolute order or promise for the payment of money alone.

(e) The amount of money must be certain.

(f) The time of payment must be a time certain to ar

rive.

(g) The instrument must be specific as to all its parties. (h) The instrument must be payable to order or to bearer.14

(i) The instrument must be delivered.

14 N. I. L. §§ 1 (subd. 4), 8. A bill or note not payable to order or to bearer is not negotiable. WESTBERG v. CHICAGO LUMBER & COAL CO., 117 Wis. 589, 94 N. W. 572 (N. I. L.), Moore Cases Bills and Notes, 95; Fulton v. Varney, 117 App. Div. 572, 102 N. Y. Supp. 608 (N. I. L.); GILLEY v. HARRELL, 118 Tenn. 115, 101 S. W. 424 (N. I. L.), Moore Cases Bills and Notes, 7; Johnson v. Lassiter, 155 N. C. 47, 71 S. E. 23 (N. I. L.); Exchange Nat. Bank v. Chapline (Ark.) 158 S. W. 151; Quast v. Ruggles, 72 Wash. 609, 131 Pac. 202 (N. I. L.). The N. I. L. does not apply to nonnegotiable bills and notes. WESTBERG v. CHICAGO LUMBER & COAL CO., supra; Fulton v. Varney, supra; GILLEY v. HARRELL, supra; Johnson v. Lassiter, supra; Quast v. Ruggles, supra; Windsor Cement Co. v. Thompson, 86 Conn. 511, 86 Atl. 1 (N. I. L.); Eades v. Muhlenberg, 157 Ky. 416, 163 S. W. 494 (N. I. L.). Nor, of course, does it apply to instruments which are not non-negotiable bills or notes. The reliance upon the N. I. L. in Sheets v. Coast Coal Co., 74 Wash. 327, 133 Pac. 433, a case involving an instrument possessing none of the formal requisites of a bill or note, was erroneous. The word "order" or "bearer" is not requisite in a negotiable bill or note. Words equivalent by custom-e. g.: "Assigns." Pearson v. Garrett, 4 Mod. 242, semble; Murphy v. Arkansas & L. Land & Improvement Co. (C. C.) 97 Fed. 723; Story, Notes, § 44; Daniel, Neg. Inst. § 99. See Porter v. City of Janesville (C. C.) 3 Fed. 617; City of Lexington v. Butler, 14 Wall. 282, 20 L. Ed. 809; Brainerd v. New York & H. R. Co., 25 N. Y. 496. Compare Zander v. New York Security & Trust Co., 178

ORDER CONTAINED IN BILL

15. An order means any form of words implying a right on the part of the drawer to command, and a corresponding duty on the part of the drawee to make, the payment specified.

Our purpose here is to illustrate the difference between a mandatory form of words directing payment and a mere request. The theory of a bill of exchange is that the drawer has funds in the hands of the drawee, which he orders or directs to be delivered or paid over to the payee or indorsee of the bill.15 Hence, where the instrument is so written as to show that the drawer has or attempts to exercise no right to order the money paid, it is not a bill of exchange.16 To determine whether or not the instrument is so written is, of course, a question purely of the construction of the instrument. Parol evidence cannot be admitted, since, if the bill is to operate as money, the instrument must be pro

N. Y. 208, 70 N. E. 449, 102 Am. St. Rep. 492 (N. I. L.); In re Fearing, 138 App. Div. 881, 123 N. Y. Supp. 396 (N. I. L.). "This note is negotiable." Raymond v. Middleton, 29 Pa. 529, semble; Stadler v. First Nat. Bank, 22 Mont. 190, 56 Pac. 111, 74 Am. St. Rep. 582, semble. "Payable on return properly indorsed." Forrest v. Safety Banking & Trust Co. (C. C.) 174 Fed. 345 (Pa. N. I. L.)—are sufficient. A bill or note in terms payable to order or bearer is not negotiable, if there be incorporated in it words forbidding its transfer. Herrick v. Edwards, 106 Mo. App. 633, 81 S. W. 466; Tanners Nat. Bank of Catskill v. Lacs, 136 App. Div. 92, 120 N. Y. Supp. 669 (N. I. L.); Heaton v. Ainley, 108 Iowa, 112, 78 N. W. 798, semble; Gazlay v. Riegel, 16 Pa. Super. Ct. 501, semble. Compare Moyses v. Bell, 62 Wash. 534, 114 Pac. 193 (N. I. L.). A debtor in the instrument creating a nontransferable common-law obligation may effectually stipulate that the creditor's assignee may enforce the obligation notwithstanding equities between the debtor and the creditor. Re Blakely Ordnance Co., L. R. 3 Ch. App. 154; Re Natal Imp. Co., Id. 355; Re Romford Canal Co., 24 Ch. Div. 91; Howie v. Lewis, 14 Pa. Super. Ct. 232. But such a stipulation does not make the obligation negotiable. 15 Luff v. Pope, 5 Hill (N. Y.) 413.

16 Edw. Bills & N. § 187; Chit. Bills, p. 154.

nounced to be a bill or not according to its face.17 The point to be determined is whether the terms of the instrument, on the one hand, leave compliance or refusal optional, or, on the other hand, amount to an imperative direction. In the former case it is a mere request; in the latter it is a demand, with which the drawee must in common honesty comply, and amounts to the order which is a necessary constituent of a bill of exchange.

We may perhaps make this distinction more clear if we show it as it is laid down in the cases. Among the earliest ones on the point are RUFF v. WEBB 18 and LITTLE v. SLACKFORD.19 In LITTLE v. SLACKFORD, construing the words, "Please to let the bearer have seven pounds, and place it to my account, and you will oblige your humble servant, R. Slackford," Lord Tenterden said: "The fair meaning is, 'You will oblige me by doing it.'" 20 In RUFF v. WEBB the words were: "Mr. B. will much oblige Mr. A. by paying C. or order." Lord Kenyon said it was a bill of exchange, because it was an order to pay money. This

17 In Norris v. Solomon, 2 Moody & R. 266, extrinsic evidence was admitted to prove that an instrument in the form of a bill, written at the bottom of a statement of account, whereby the creditor directed the debtor to pay the amount of the statement to a third person, was not intended by the drawer as a bill but as a memorandum of authority. In First Nat. Bank v. Golden, 19 Cal. App. 501, 126 Pac. 498, a similar ruling was made. But these decisions are erroneous. See 2 Ames Cas. Bills & Notes, 827; Russell, Bills, 27-29. The instrument in each case was clearly a bill. Hoyt v. Lynch, 2 Sandf. (N. Y.) 328; Knefel v. Flanner, 66 Ill. App. 209; Id., 166 Ill. 147, 46 N. E. 762. See Chicago Heights Lumber Co. v. Miller, 219 Ill. 79, 76 N. E. 52, 109 Am. St. Rep. 314.

18 1 Esp. 129 (before Lord Kenyon in 1794), Moore Cases Bills and Notes, 10.

19 Moody & M. 171 (before Tenterden, C. J., in 1828), Moore Cases Bills and Notes, 11.

20 But in Biesenthall v. Williams, 62 Ky. (1 Duv.) 329, 85 Am. Dec. 629, and Regina v. Tuke, 17 U. C. Q. B. 296, similar instruments were interpreted to be imperative directions and were held to be bills. In King v. Ellor, 1 Leach, Crown Law, 323, it was held that the terms of the following order did not import any compulsion on the part of the drawee to pay, but was simply a request: "Please to send £10 by the bearer, as I am so ill I cannot wait upon you." See 1 Leach, Crown Law, 95, note (a).