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CHAPTER XVI.

BILLS OF EXCHANGE, CHEQUES AND PROMISSORY NOTES.

[See Byles on Bills, 16th ed., 1899 ; Watson on Cheques, 3rd ed., 1904.]

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SECT. 1.-Generally. A BILL of exchange, or open letter of request from one man to Distinction

from other another desiring him to pay a sum named therein to a third

contracts. person on his account, a cheque or bill of exchange desiring a banker to pay a sum named therein to a third person on demand, and a promissory note or open promise by one man to another to pay him a certain sum of money therein specified, become each of them by delivery contracts differing from other contracts in the two essential particulars (1) that they are consideration presumed to be made for a consideration, and (2) that they are and assigna

presumed, assignable. The rules governing their form and the liabilities bility. of the parties to them, though occasionally embodied in the statute law before 1882, were to a very much greater extent decided from a long succession of judicial decisions perpetually increasing with the increase of commerce and business, for the facilitating the transaction of which they were originally devised many hundred years ago.

. In 1882, however, the Bills of Exchange Act, 1882, 45 & 46 Bills of Vict. c. 61, was passed to "codify" the law "relating to Bills Act, 1882. of Exchange and Promissory Notes," and this Act embodies in 100 sections the result of the previous judicial provisions and statutes (a), assimilating the Scots and English law, clearing up many points theretofore doubtful, but as a general rule leaving the substance of the law unaltered. In the next three sections of this chapter will be given the main provisions of this important Act as they affect bills, cheques and notes respectively, but it will

(a) See McLean v. Clydesdale Banking Co. (1883), 9 App. Cas. 95, per Lord

Blackburn, In re Bethell (1883), 34
Cl. D. 561.

Bills of

Act, 1882

&c.

CH. XVI. s. 1. be first desirable to extract the two principal provisions of general Generally application :

S. 91.-(1) Where, by this Act, any instrument or writing Exchange

is required to be signed by any person, it is not necessary that .contd.

he should sign it with his own land, but it is sufficient if his signature is written thereon by some other person by or under

his authority. Signature. (2) In the case of a corporation, where, by this Act, any

instrument or writing is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal.

But nothing in this section shall be construed as requiring the

bill or note of a corporation to be under seal. Savings for S. 97.-(1) The rules in bankruptcy relating to bills of ex. bankruptcy, law merchant, change, promissory notes, and cheques, shall continue to apply

thereto notwithstanding anything in this Act contained (b).

(2) The rules of common law including the law merchant, save in so far as they are inconsistent with the express provi. sions of this Act, shall continue to apply to bills of exchange,

promissory notes, and cheques (c). Stamps. (3) Nothing in this Act or in any repeal effected thereby shall

affect-
(a) The provisions of the Stamp Act, 1870 (d), or Acts amend-

ing it, or any law or enactment for the time being in

force relating to the revenue : Companies. (b) The provisions of the Companies Act, 1862 (e), or Acts

amending it, or any Act relating to joint stock banks or

companies : Bank of (c) The provisions of any Act relating to or confirming the England.

privileges of the Bank of England () or the Bank of

Ireland respectively : Dividend (d) The validity of any usage relating to dividend warrants warrants.

or the indorsements thereof.

Bill of ex. change (letined.

Sect. 2.Bills of Exchange.
By the Bills of Exchange Act, 1882—

S. 3.-(1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the

(b) See Ex parte Robarts (1886), 18 sect. 32, see Committee of London ClearQ. B. D. 286, C. A.

ing Bankers v. Commissioners of Inland (c) See Kirkwood v. Carroll, [1903] Revenue, [1895] 1 Q. B. 542, C. A K. B., at p. 533.

And see Ch. V., ante. (a) 33 & 34 Vict. c. 97, repealed and (c) 25 & 26 Vict. c. 89, Chit. Stat., re-enacted, with its amending Acts, by Companics." the Stamp Act, 1891, 54 & 55 Vict. (5) See Bank Charter Act, 1844, 7 & 8 c. 39, Chit. Stat., tit. “ Stamps.” See Vict. c. 32, and other Acts, Chit. Stat., sects. 32–39, and schedule, tit. “Bill tit. Bank." of Exchang?," and as to construction of

tit.“

1 bill of ex

person giving it, requiring the person to whom it is addressed CH. XVI. s. 2.

Bills of to pay on demand or at a fixed or determinable future time a

Erchange. sum certain in money to or to the order of a specified person (g), (Act of 1882). or to bearer.

Definition of (2) An instrument which does not comply with these con

change" ditions, or which orders any act to be done in addition to the contd. payment of money, is not a bill of exchange.

(3) An order to pay out of a particular fund is not unconditional within the meaning of this section ; but an unqualified order to pay, coupled with (a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be debited with the amount, or (b) a statement of the transaction which gives rise to the bill, is unconditional.

(4) A bill is not invalid by reason-
(a) That it is not dated ;
(b) That it does not specify the value given, or that any value

has been given therefor;
(c) That it does not specify the place where it is drawn or the

place where it is payable. S. 4.—(1) An inland bill is a bill which is or on the face of it Inland and

foreign bills. purports to be (a) both drawn and payable within the British Islands, or (b) drawn within the British Islands upon some person resident therein. Any other bill is a foreign bill.

For the purposes of this Act “ British Islands ” mean any part of the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them being part of the dominions of her Majesty.

(2) Unless the contrary appear on the face of the bill the lıolder may treat it as an inland bill.

S. 5.—(1) A bill may be drawn payable to, or to the order of, Effect where the drawer; or it may be drawn payable to, or to the order of, parties to bill the drawee.

person. (2) Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note. S. 6.—(1) The drawee must be named or otherwise indicated Address to

drawee. in a bill with reasonable certainty.

(2) A bill may be addressed to two or more drawees whether they are partners or not, but an order addressed to two drawees

are the same

(9) ins rument made payable to

order" must be construed as pay. able to the order of the drawer, and when

indorsed by him is a valid bill of exchange (Chamberlain v. Young, [1893] 2 Q. B. 206, C. A.).

or it

CH. XVI. s. 2. in the alternative or to two or more drawees in succession is not

Bills of a bill of exchange. Exchange (Act of 1882). S. 7.-(1) Where a bill is not payable to bearer, the payee Certainty

must be named or otherwise indicated therein with reasonable as to payee.

certainty.
(2) A bill may be made payable to two or more payees jointly,

may be made payable in the alternative to one of two, or one or some of several payees. A bill may also be made payable to the holder of an office for the time being.

(3) Where the payee is a fictitious or non-existing person the

bill may be treated as payable to bearer (h). What bills S. 8.-(1) When a bill contains words prohibiting transfer, or are negoti.

indicating an intention that it should not be transferable, it is valid able.

as between the parties thereto, but is not negotiable.

(2) A negotiable bill may be payable either to order or to bearer.

(3) A bill is payable to bearer which is expressed to be so parable, or on which the only or last indorsement is an indorsement in blank.

(4) A bill is payable to order which is expressed to be so parable, 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.

(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. Sum payable.

S. 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

(h) The effect of sect. 7 (3) is that a bill may be treated as payable to bearer where the payee is a real person, but Wils not intended by the drawer to have any right upon it; and this is so though the bill (so-called) is not in reality a bill but a document in the form of a bill, manufactured by a person who forges the signature of the named drawer, obtains by fraud the signature of the acceptor, forges the signature of the named payee, and presents the document for payment ; Bank of England v. Vagliano, [1891) A. C. 107, reversing both decisions below, Lords Bramwell and Fielel, diss. — with the result that Vagliano, a customer of the bank, and not the bank, as had been held by the Court of Appeal and by Charles, J., had to bear the loss of more than 70,0001., arising from the payment of 43 so-called bills.

A non-existing person is none the less so because the drawer supposes him to

be a real one; Clutton v. Attenborough, (1897] A. C. 90. In this case a clerk of large land agents fraudulently representing to them that B., who did not exist, had done work for them, induced them to sign cheques payable to B., and then himself indorsed them and obtained cash for them from the defendant, with the ultimate result that his employers were charged, and upon the fraud being discovered, sued the defendant for the amounts as money paid under a mistake of fact. It was held by the House of Lords, affirming Wills, J., [1895] 3 Q. B. 306, and the Court of Appeal, (1895) 2 Q. B. 707, that the cheques Were “ issued" within the meaning of sect. 2; that B. was a fictitious or non-existing person within the meaning of sect. 7, sub-sect. 3; that the cheques might be treated as payable to bearer ; and that the defendant, being holder in good faith for value, was not liable.

(a) With interest.

CH, XVI. s. 2.

Bills of (b) By stated instalments.

Erchange. (c) By stated instalments, with a provision that upon default in

payment of any instalment the whole shall become due. (d) According to an indicated rate of exchange or according to

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

(3) Where a bill is expressed to be payable 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. S. 10.-(1) A bill is payable on demand

Bill payable

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

or on presentation; or (b) In which no time for payment is expressed.

(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. S. 11. A bill is payable at a determinable future time within the Bill payable

at a future meaning of this Act which is expressed to be payable :

time. (1) At a fixed period after date or sight. (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. An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect.

S. 12. Where a bill expressed to be payable at a fixed period Omission of after date is issued undated, or where the acceptance of a bill payable after payable at a fixed period after sight is undated, any holder may date. 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.

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

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

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and post

C.C.

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