Page images

Sec. 3.

[ocr errors]

pay in "

Hence if the specific sum to be paid be not expressed at all, or it be
uncertain in amount, or be accompanied by other words that make the
sum more or less, according to circumstances, the instrument is void as a
bill of exchange : Story on Bills, s. 42.

An instrument promising to pay £14, to be paid in carpenter's or joiner's
work such as may be required, is not a note : Downs v. McNamara, 3
U. C. Q. B. 276.

A promise to pay a sum certain on a day named “in cash or mortgage on real estate,” is not a note : Going v. Barwick, 16 U. C. Q. B. 45 ; s.p. Newhorn v. Lawrence. 5 U. C. Q. B. 359.

“Due J. J., or bearer $482 in Canada bills, payable in 14 days after date” is not a note : Gray v. Worden, 29 U. C. Q. B. 535. An instrument made in Canada promising to

current funds of the United States” is not a note : Bettis v. Weller, 30 U. C. Q. B. 23. Sed contra, St. Stephens Branch R. W. Co. v. Black, 2 Han. N. B. 139.

A promise to pay a sum certain at Kingston, Upper Canada, “with exchange on New York,” is for an uncertain sum, and is not a bill or note : Palmer v. Fahnestock, 9 U. C. C. P. 172 ; s.p. Philadelphia Bank v. Newkirk, 2 Miles (Pa.) 442.

A custom between merchants in Canada and the United States to draw bills “with current rate of exchange on New York,” is not part of the lex mercatoria ; Cazet v. Kirk, 4 All. N. B, 543.

An instrument “payable in Pennsylvania or New York paper currency, to be current in the State of Pennsylvania or the State of New York,” is not a note : Leiber v. Goodrich, 5 Cow. (N.Y.) 186.

A paper consisting of a promise “to pay A. or order £13, for value received, together with interest at £5 per cent. per annum, and all fines according to rule,” is not a note, on account of the introduction of the last words : Airey v. Fearnsides, 4 M. & W. 168 ; 2 Jur. 596. “I., J. D., have this day borrowed of J. C. £300 at 4 per hundred

payable yearly," is not a note : Cory v. Davis, 14 C. B. N. S. 370.

I have received the sum of £200 which I borrowed of you, and I have to be accountable for the said sum with interest,” is not a note : Horne v. Redfearn, 4 Bing. N. C. 430.

“ I will pay J. C., $90 for D. P., or otherwise settle the sum of $90 for him on a note that he says he gave J. C. for $100,” is not a note : Cochrane v. Cail, 3 Pugs. N. B. 224.

“I promise to pay to Mr. S., or his order, at three months after date, £100, as per memorandum of agreement,” is a note : Jury v. Barker, E. B. & E. 459; 4 Jur. N. S. 587.

“Port of London Sea, Fire and Life Assurance Company. To the cashier,-- Fifty-three days after date, credit P. & Co., or order, with the sum of 5001. claimed, per Cleopatra, in cash, on account of this corporation. (Signed) A. C. (the drawer), Managing Director.” The words “ credit in cash,” meaning pay, is a bill : Eddison v. Collingridge, 9 U. B. 570; 14 Jur. 869.

An order to pay in "three good East India bonds" is not a bill: Anon. Buller's N. P. 268.

[ocr errors]


Sec. 3.


A promise to pay A. B. or his order $750 in grain, is not a note : Carlton v. Brooks, 14 N. H. 149.

“Due to S. G. $10,000 to be paid as wanted for her support,” is not valid : Gordon v. Rundlett, 28 N. H. 435.

An order requiring the drawee to pay a sum certain, and deliver up a wharf, is not a bill : Martin v. Chauntry, 2 Stra. 1271.

An order to pay £7,000,“ which sum is on account of the dividends and interest due on the capital and deeds registered in the books of the Bank of E. in the name of C. & B., which you will please charge to my account and credit according to a registered letter I have addressed to you,” is a negotiable bill : Ře Boyse, 33 Ch. D. 612.

The following addressed to executors: “We do hereby authorize and require you to pay to G. P. or his order, the sum of £250, being the amount directed by the order of the 29th July last to be paid to our order,” is not a bill : Russell v. Powell, 14 M. & W. 418.

An instrument by which A. promises to pay to the bearer £50, being the portion of a value, as under, deposited in security for the payment thereof,” is a note: Haussoullier v. Hartsinck, 7 T. R. 733. And see Collis v. Emmett, 1 H. Bl. 313; Read v. McNulty, 12 Rich. (S. C.) 445.

A promise to pay a sum certain“ with exchange not to exceed one-half per cent." is not a note : Saxton v. Stevenson, 23 U. C. C. P. 503.

A note payable to the representatives of S. three months after his decease, “first deducting thereout any interest or money which S. might owe to the maker on any account,” is not a note for the payment of a definite sum at all events : Barlow v. Broadhurst, 4 Moore 471.

An instrument promising to pay a sum“ to collaterally secure the payment of the money mentioned in an assignment of mortgage,” is not a note: McRobbie v. Torrance, 5 Man. R. 114.

7"On demand, or at a fixed or determinable future time.” The time of payment is regularly and usually stated in the beginning of the note or bill ; but if no time be expressed, the instrument will be payable on demand. There is no limitation as to the time when the bill or note is made payable; but it may be on demand, or at sight, or any certain period after date, or sight, or usance. “If a bill of exchange be made payable at never so distant a day, if it be a day that must come, it is no objection to the bill :" Per Willes, C.J., in Colehan v. Cooke, Willes 396. It is obvious that some time must be fixed, either absolutely or by necessary relation to some fact, or by implication of law, at which every bill is to be payable; for otherwise the rights, duties and obligations of the parties respectively would be indeterminable and uncertain : Story on Bills, s. 50. See further definition in s. 11.

Due to R. R. £500 for value received, &c., “payable at the sale of
timber marked P. A. in Quebec, or elsewhere,” is not a fixed time ;
Russell v. Wells, 5 U. C. 0. S. 725.

A promise to pay on the sale or produce, immediately when sold, of the White Hart, St. Albans, Herts, and the goods, value received,” is not a fixed time : Hill v. Halford, 2 B. & P. 413.

A bill payable at 30 days after the ship P., shall arrive at C., is contingent: Palmer v. Pratt, 7 Bing. 185.


Sec. 3.

A promise to pay “at such a period of time that my circumstances will admit, without detriment to myself or family,” creates no debt: Ex parte Tootell, 4 Ves. 372.

An order for a sum “payable ninety days after sight, or when realized," is not a bill : Alexander v. Thomas, 16 Q. B. 333; 15 Jur. 173.

Mr. S. has this day deposited with me £500, on the sale of £10,300 per cent. Spanish, to be returned on demand : Held, not a bill or note : Sibree v. Tripp, 15 M. & W. 23.

8“A sum certain in money.” It is an indispensable requisite that the bill should be for the payment of money, and of money only. Thus a bill to pay money and to do some other thing, or a bill to deliver goods, merchandize, or stock or bonds, or bank notes, or current medium, or drafts, is not a bill of exchange. It may be payable in coins, such as guineas, sovereigns, Napoleons, florins, or dollars. It may be payable in the currency or money of England, France, Germany, Italy, Russia, Spain, Holland, India, United States, or any country, as pounds sterling, francs, marks, liras, roubles, piastres, florins, rupees, or dollars, for in all these cases the sum of money to be paid is fixed by the par of exchange, or the known denomination of the currency with reference to the par. See Story on Bills, s. 43. “Money is the medium through which the incomes of the different members of the community are distributed to them; and the measure by a hich they estimate their possessions :" 2 Mill's Political Economy, 8. “In the rude ages of society, cattle are said to have been the common instrument of commerce. The armour of Diomede, says Homer, cost only nine oxen; but that of Glaucus costs an hundred oxen:" Smith's Wealth of Nations, ll. “Furs have been employed as money in some countries ; cattle in others; in Chinese Tartary, cubes of tea closely pressed together; the shells called cowries, on the coast of Western Africa ; and in Abyssinia, at this day, blocks of rock salt; though even of metals the less costly have sometimes been chosen, as iron in Lacedæmon, from an ascetic policy ; copper in the early Roman Republic, from the poverty of the people. Gold and silver have been generally preferred by nations which were able to obtain them, either by industry, commerce, or conquest :” 2 Mill's Political Economy, 7.

9 “To, or to the order of a specified person or bearer.” Every bill of exchange ought to specify to whom the same is payable ; for in no other way can the drawee, if he accepts it, know to whom he may properly pay it, so as to discharge himself from all further liability. It should also be stated to whom absolutely and certainly, and not alternatively, the bill is to be paid ; for if it is payable to A. or to B., it is not properly a bill of exchange, since it is payable to one only on the contingency that it is not paid to the other : Story on Bills, s. 54. It is not indispensable that the name of the payee should be inserted in the bill when made. The blank may be filled up afterwards by any person in possession with his own name as payee, and thenceforth it will be valid and effectual for all purposes in the hands of such person as holder ab initio (s. 20).

Sec. 3.

1 If the bill or note be payable out of a particular fund only, or upon an event which is contingent, or if it be otherwise conditional, it is not, in contemplation of law, a bill of exchange, or in its essential character negotiable. And hence the general rule is that a bill of exchange implies a personal general credit, not limited or applicable to particular circumstances and events which cannot be known to the holder of the bill in the general course of its negotiation : Story on Bills, s. 46. Where the direction is to pay “out of” a particular fund the order is conditional; but where the words are used merely to indicate that a particular fund is to be debited, the order is unconditional. Whether a bill or note is conditional, is a question of law : Sproatt v. Matthews, 1 T. R. 182.


A bill drawn payable "out of the growing substance” of the drawer is invalid : Josselyn v. Lacier, 10 Mod. 294.

A promise to pay “out of the net proceeds of ore to be raised and sold," is conditional : Worden v. Dodge, 3 Den. (N. Y.) 159.

An order to pay £15 “out of my half pay which will become due the 1st January,” is conditional : Stevens v. Hill, 5 Esp. 247.

An order to pay “out of the moneys arising from my reversion when sold,” is conditional : Carlos v. Fancourt, 5 T. R. 482.

An order to pay “out of repts,” is conditional : Morton v. Naylor, 1 Hill (N.Y.) 583.

An order to pay a sum certain “ on account of moneys advanced by me to the S. & F. Company,” is unconditional : Griffin v. Weatherby, L. R. 3 Q. B. 753.

An order to pay a sum certain “against credit No. 20, and place it to account as advised by J. P. & Co.," is unconditional : Banner v. Johnston, L, R. 5 H. L. 157.

An order to pay £9.10 " as my quarterly half-pay due 1st February by advance,” is unconditional : Macleod v. Snee, 2 Stra. 762.

An acceptance on a draft in these words “ We will keep the sums of $605 and $405 from the first estimate of McL. and M. & Co., as requested above, provided they have done sufficient work to earn that sum ;" Held, to be a bill : McLean v. Shields, 1 Man. R. 278.

A bill or note drawn on a particular fund, and not payable generally, is not valid : Dawkes v. Earl Deloraine, 2 W. Bl. 782.

An order drawn in express terms for a particular fund, will operate as an assignment of the fund, but it will not be negotiable, and is not a bill of exchange : Cowperthwaite v. Sheffield, 3 N. Y. (Comst.; 243.

“Mr. 0.-Mr. B. wants £25, twelve o'clock this day, i.e., 15th of Feb., 1860. I want you to get it him immediately out of S.'s money ;” signed by H., and accepted by the defendant :-Held, not a bill, because payable out a particular fund : Ockerman v. Blacklock, 12 U. C. C. P. 362.

An authority to pay money "out of the moneys now due or hereafter to become due to me under the will of my late father,” is conditional : Fisher v. Calvert, 27 W. R. 301.

Sec. 3.

An order to pay “out of the moneys in your hands belonging to the proprietors of the Devonshire mines and quarries,” is conditional : Jenney v. Herle, 2 Ld. Raym. 1361.

An order drawn upon the treasury by a public officer for his salary is not a bill : Shader v. Batchelor, 8 B. Mon. (Ky.) 168.

An order on a public auditor as follows : “From proceeds of drafts of Messrs. A. & T. in my favour filed in your office, pay to the order of Messrs. R. & Co., of Philadelphia, $650, acceptance received, and charge without further notice to account of C. A.," is not a bill : Raigauel v. Ayliff, 16 Ark. 594.

A warrant issued by a county auditor, dated at his office, and reading, Treasurer of S. F. county will pay to the order of J. D. M. the sum or $1,000, as ordered by the Board of Supervisors, &c.,” is not a bill : Dana v. San Francisco, 19 Cal. 486 ; s.p. Bayerque v. San Francisco, 1 McAll. 175.

Township orders drawn by the township treasurer, and “ ‘payable out of the moneys arising from road taxes,” are not bills : Dyer v. Township of Covington, 19 Pa. St. 200.

2 The definition given of a bill by the preceding part of this section does not make the date essential to the form of a bill. But in general it may

be stated that there should be a date to every bill of exchange. However it is not in all cases indispensable, although in foreign bills the date is rarely if ever omitted. In all cases of bills drawn so many days after date, it would seem almost indispensable that the date should appear upon the face of the instrument, for otherwise it cannot be known to the drawee at what period it is payable; nor can the holder know when it should be presented for payment. But when bills are drawn at, or so many days after, sight, or on demand, it does not seem indispensable that the date should appear. It is obvious, however, that every such omission must be attended with some practical inconvenience, and therefore it seldom occurs except from pure mistake : Story on Bills, s. 37. Most of the continental codes require the bill to be dated. If the date of a bill or note is omitted, it is considered as dated on the day on which it is made : Giles v. Bourne, 6 M. & S. 73. And such date may be shewn by parol evidence : Davis v. Jones, 17 C. B. 625. A note dated in 1837, and made payable " January 1, one thousand forty,” was held to mean 1st January, 1840: Evans v. Steel, 2 Ala. 114. By s. 12 post, the true date of a bill may be inserted by any holder. The date of a note is only descriptive ; it is not necessary to its validity, and may be explained : Dean v. De Lezardi, 24 Miss. 424.

3 It was formerly a matter of controversy in our law whether it was necessary that a bill should import on its face to be for value received. “If the drawer mentions it jor value received, then he is chargeable at common law; but if no such me ion, then you must come upon the custom of merchants only:" Per Holt, C.J., in Cramlington v. Evans, 1 Show. 5. It has long been fully established that the words are not necessary or material : Watson v. Kightley, 3 Per. & D. 408. The words " value


« PreviousContinue »