« 이전계속 »
instrument invalid, Kershaw v. Cox, 3 Esp. 246. As to the negotiation
S. 3. of bills payable to order see subsect. (3) of sect. 31 of this Act
Bill of and the notes thereto. It has been held that a bill made payable to exchange the order of
may be filled up by anyone who came regularly to defined. the possession of it with his own name; Cruchley v. Clarance, 2 M. & S. 90; Crutchley v. Mann, 5 Taunt. 529; even after the acceptor's death ; Carter v. White, 20 Ch. D. 228; see also Hatch v. Searles, 2 Sm. & G. 147.
(m) As to the definition of “bearer” see sect. 2. By sub-sect. (3) of sect. 7 of this Act, where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer. See that sub-section and the notes thereto; see also the last preceding note (n) hereto. As to the negotiation of bills payable to bearer see sub-sect. (2) of sect. 31 of this Act and the notes thereto.
(1) As to instruments requiring or ordering any act to be done in Ind. Act, s. 17. addition to the payment of money, see note (o) hereto. It has been held that if an instrument is so ambiguous that it is doubtful whether it is a bill of exchange or promissory note, it may be treated as either, Edis v. Bury, 6 B. & C. 433; Block v. Bell, 1 Moo. & Rob. 149 ; Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp.
Fielder v. Marshall, 9 C. B. N. S. 606; Lloyd v. Oliver, 18. Q. B. 471; Forbes v. Marshall, 11 Ex. 166; audit is so provided by sect. 17 of the Indian Act. See also 1 Parsons on Bills, 63. A bill drawn by a bank at one place on a branch bank at another place may be declared on as a note; Miller v. Thomson, 3 M. & G. 576. As to coupons
and letters of credit, see Byles on Bills (13th edition), 99.
(k) It has been long settled that an instrument, though in the form of a bill or note, but made payable out of a particular fund, is not a bill or note, Dawkes v. Delorane, 3 Wils. 207; Stevens v. Hill, 5 Esp. 247; nor is a promise to pay, but “ if the agent does not sell enough in one year, one more is granted ;” Miller v. Poage, 41 Amer. Rep. 82; nor if it state that the amount is directed by an order of the Court to be paid to the order of the drawers, Russell v. Powell, 14 M. & W. 418; nor if the bill be accepted for A. B. of Leghorn, to pay as remitted from thence at usance; Banbury v. Lisset, 2 Stra. 1211; nor if it be payable on the sale or produce of a house when sold, Hill v. Halford, 2 B. & P. 413.
(j) An instrument containing simply an indication of a particular fund out of which the money is to come is a bill of exchange, Haussoullier v. Hurtsinck, 7 T. R. 733, where the promise was to pay £50, “ being a portion of value as under deposited in security for the payment hereof."
(h) As for instance, pay to Messrs. Griffin, Morris, Griffin & Morris, or order, on account of moneys advanced by me for the Isle of Man Slate and Flag Company, Ld., Griffin v. Weatherby, L. R. 3 Q. B. 753. As to a bill expressed on the face of it to be “ against cotton per Sultan," see Inman v. Clare, Johnson, 769. As to a bill accepted
Bill of exchange defined.
subject to the delivery of shipping documents, see Banner v. Johnston, L. R. 5 H. L. 157.
(9) Thus in Dixon v. Nuttall, 6 C. & P. 320, the following document was held to be a good promissory note, viz.: “I promise to pay to Mary Ann Dixon or bearer, on demand, the sum of £16 at sight by given up clothes and papers.” Again an instrument reciting the fact that real security has been given is a good note, Fancourt v. Thorne; 9 Q. B. 312; see also Haussoullier v. Hartsinck, 7 T. R. 733.
(f) A date never was considered necessary; and if the date is omitted, it is considered as dated on the day on which it was made, which is shewn by parol evidence, Davis v. Jones, 17 C. B. 625; 25 L. J. C. P. 91; Giles v. Bourne, 6 M. & S. 73; Story on Bills, sect. 37; see also sect. 12 of this Act and the notes thereto. Where, however, the instrument is dated, the date on it is prima facie evidence of the time when the instrument was made, Malpas v. Clements, 19 L. J. Q. B. 435; Laws v. Rand, 3 C. B. N. S. 442; Anderson v. Weston, 6 Bing. N. C. 296; 8 Scott, 583; Potez v. Glossop, 2 Ex. 195. And now it is so provided by subsect. (1) of sect. 13 of this Act; see that sub-section and the notes thereto. Before this Act there was an exception to this rule, viz. a bill, dated on a Sunday, see Begbie v. Levy, 1 C. & J. 180. But this exception is now removed by sub-sect. (2) of sect. 13 of this Act. As to-ante-dated or post-dated instruments, see Passmore v. North, 13 East, 517; Austin v. Bunyard, 34 L. J. Q. B. 217; 11 Jur. N. S. 874; 12 L. T. N. S. 452; Forster v. Mackreth, L. R. 2 Ex. 163; 36 L. J. Ex. 94; Bull v. O'Sullivan, L. R. 6 Q. B. 209; 40 L. J. Q. B. 141; Gatty v. Fry, 2 Ex. D. 265; 46 L. J. Ex. 605; 36 L. T. N. S. 182. And so it is now provided by subsect. (2) of sect. 13 of this Act, which see.
(e) The consideration of a bill of exchange and promissory note is presumed till the contrary appear; see sections 27–30 (both inclusive) of this Act and the notes thereto. Before this Act it had been settled that the words “ value received” are not essential to constitute a bill ; White v. Ledwick, 4 Doug. 247; Hatch v. Trayes, 11 A. & E. 702. Where a bill or a note states that it is for value received parol evidence is admissible to shew the want of the consideration, Thomson v. Clubley, 1 M. & W. 212; Abbott v. Henricks, 2 Scott, N. R. 183; but not to show a different consideration to that stated, Ridout v. Bristow, 1 Cr. & J. 231; Nelson v. Serle, 4 M. & W. 795; Abrey v. Crux, L. R. 5 C. P. 37; Hill v. Wilson, 42 L. J. Ch. 817. But the consideration of a bill or note must not be future or executory, as it thus becomes conditional, Drury v. Macaulay, 16 M. & W. 146.
(d) “It never has been necessary to specify on a bill or note the name of the place where it is drawn or made, nor the place where it is made payable; although of course both the places are frequently specified.” See Chalmers' Digest of the Law of Bills of Exchange (2nd edition) p. 24; and Byles on Bills (13th Edition) p. 79.
4.-(1.) An inland bill is a bill which is or on the SS. 4, 5. face of it purports to be (a) both drawn and payable Inland and within the British Islands, or (b) drawn within the foreign bills. British Islands upon some person resident therein (ə). Ind. Act, s. 11, 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 islands adjacent to any of them being part of the dominions of Her Majesty (y).
(2.) Unless the contrary appear on the face of the bill the holder may treat it as an inland bill (@).
(2) This is the same as the definition in sect. 7 of the 19 & 20 Vict. c. 97, which is as follows: “Every bill of exchange or promissory note drawn or made in 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, and payable in or drawn upon any person resident in any part of the said United Kingdom and Islands, shall be deemed to be an inland bill."
(y) It will be seen that the local limits specified herein are the same as the local limits in sect. 7 of the 19 & 20 Vict. c. 97, above cited ; see the last preceding note hereto.
() “ The statute (i.e. 55 Geo. III. c. 184) primâ facie intends that inland bills are such as are not drawn payable abroad,” per Lord Abinger in Amner v. Clarke, 2 B. & Ad. 471. In the course of the arguments in that case his lordship remarked : “It (i.e. the same statute) defines an inland bill by saying what a foreign bill is, and all others are taken to be inland bills.” See also Armani v. Castrique, 13 M. & W. 443. As to what is an Inland instrument in India, see sec. 11 of the Indian Act. 5.-(1.) A bill may be drawn payable to, or to the Effect where
different order of, the drawer (a); or it may be drawn payable to, parties to bill or to the order of, the drawee (b).
(2.) Where in a bill drawer and drawee are the same Ind. Act, s. 13. person (c), or where the drawee is a fictitious (d) person or a person not having a capacity to contract (e), the holder may treat the instrument, at his option, either as a bill of exchange or as a promissory note (f).
(a) The drawer is the person who gives the order or direction ; see note (v) to subsect. (1) of sect. 3 of this Act. As to a bill drawn
are the same person.
SS. 5, 6. payable to the drawer or his order, see Butler v. Crips, 1 Salk. 130.
As to the negotiation of bills payable to order see subsect. (3) of Effect where different
sect. 31 of this Act, and the notes thereto. Where a bill is drawn parties to bill payable to the drawer's order it is payable to himself without alleging are the same
any order made, Smith v. McClure, 5 East, 476. Where a bill is persun.;
drawn in the name of a fictitious person payable to the order of the Ind. Act, s. 42.
drawer, the acceptor is considered as undertaking to pay to the order of the person who signed as the drawer, Cooper v. Meyer, 10 B. & C. 468; see also 1 Parsons on Bills, 32; Beeman v. Duck, 11 M. & W. 251.
(6) The drawee is the person on or to whom the order or direction is given, and on his acceptance he becomes and is known as the acceptor, and is then presumed to be the principal debtor on the bill. As regards acceptance see sect. 2 and sub-sect. (1) & (2) of sect. 17 of this Act and the notes thereto. Where a bill is drawn by the drawer on himself it is considered a promissory note, Roach v. Ostler, 1 M. & R. 120; Williams v. Ayers, 3 ap. Cas. at p. 142. So also where a bill is drawn by a bank at one place on a branch bank at another place, it may be treated as a promissory note, Miller v. Thomson, 3 M. & G. 576.
(c) As regards the drawer and drawee being the same person, see Roach v, Ostler, 1 M. & R. 120; also Miller v. Thomson, 3 M. & G. 576; Williams v. Ayers, 3 Ap. Cas. at p. 142; see also note (v) to sect. 50 of this Act.
(d) As to fictitious parties, it has been held that where a bill is drawn in the name of a fictitious person, payable to the order of the drawer, the acceptor is considered as undertaking to pay to the order of the person who signed as the drawer, Cooper v. Meyer, 10 B. & C. 468; see also Beeman v. Duck, 11 M. & W. 251. Where the bill was made payable to a fictitious or non-existing person, it was held to be payable to bearer, Phillips v. Im-Thurn, L. R. 1 C. P. 464, following Minet v. Gibson, 3 T. R. 481; and overruling Bennett v. Farnell, 1 Camp. 130 and Were v. Taylor, cited in 1 Camp. 131; see also Tatlock v. Harris, 3 T. R. 174; Vere v. Lewis, 3 T. R. 182; Story on Bills, s. 56.
(e) As regards the capacity to contract, see subsects. (1) & (2) of sect. 22 of this Act and the notes thereto.
(f) As to promissory notes see sects. 83-89 of this Act and the
sub-sections of the same and notes thereto. Address to 6.-(1.) The drawee must be named or otherwise drawee.
indicated in a bill with reasonable certainty (a).
(2.) A bill may be addressed to two or more drawees, whether they are partners or not, but an order addressed to two drawees in the alternative or to two or more drawees in succession is not a bill of exchange (b).
(a) As to a bill not addressed to any one see Reynolds v. Peto, SS. 6, 7. 11 Ex. 418. Where a bill was made payable at No. 1 Wilmot Street,
Address to opposite the Lamb, “Bethnal Green, London," without being addressed drawee. to any person, and the defendant who resided there accepted it, he was held liable upon the instrument as a bill of exchange, Gray v. Milner, 8 Taunt. 739; 3 Moore, 90. In Peto v. Reynolds, 9 Ex. at p. 416, Alderson, B., says that “ Gray v. Milner may be thus explained: that a bill of exchange, made payable at a particular house or place, is meant to be addressed to the person who resides at that place or house." In R. v. Curry, 2 Moody's C. C. 218, the instrument was held not to be a bill, apparently on the ground that it was not addressed to anyone. In Shuttleworth v. Stephens, 1 Camp. 407, an instrument had the word “at" instead of the word " to " preceding the name of the drawees, it was held that it was a bill of exchange or that it might be considered a promissory note at the option of the holder; so also an instrument which appears on common observation to be a bill of exchange may be treated as such, although words be introduced into it for the purpose of deception which might make it a promissory note, Allan v. Mawson, 4 Camp. 115.
(6) As to a bill addressed to one man and accepted by another, see Ind. Act, s. 33. Davis v. Clarke, 13 L. J. Q. B. 305; 6 Q. B. 16. “ There is no authority," said Lord Denman, in his judgment in this case, “either in the English law or the general law merchant, for holding a party to be liable as acceptor upon a bill addressed to another." See also Polhill v. Walter, 3 B. & Ad. 114; Jackson v. Hudson, 2 Camp. 447 . “Save in the case of acceptances for honour or per procuration, no one can become a party to a bill quâ acceptor who is not a proper draw ee, or in other words an addressee;" per Lord Watson in Steele v. McKinlay, 5 Ap. Cas. at p. 779. A bill addressed to the M. Co. was accepted by F. M." for M. Co. and self;" Held, that F. M. was not liable as acceptor; Malcolmson v. Malcolmson, 1 L. R. Ir. 228.
7.-(1.) Where a bill is not payable to bearer, the Certainty payee must be named or otherwise indicated therein with required as to
payee. reasonable certainty (a).
(2.) A bill may be made payable to two or more payees jointly (6), or it may be made payable in the alternative to one of two, or one or some of several (c) payees. A bill may also be made payable to the holder of an office for the time being (d).
(3.) Where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer (e).
(a) In Yates v. Nash, 8 C. B. N. S. 581; 29 L. J. C. P. 306, it was held that to constitute a valid bill of exchange, the payee must be a