VIII. CHAPTER not restrain the operation of the bill or note if it be collateral, e.g., if other persons besides the parties to the bill or note be parties to it (j). neous but collateral. Promissory note accompanying a mortgage. When a promissory note is given to accompany a mortgage deed as further security, the mortgagee is not entitled to sever the two, and a court of equity would, if necessary, issue an injunction to restrain him from so doing (k). No mere oral agreement can have any effect at law in controlling the instrument, if contemporaneous with the making of it; for that would be to allow oral evidence to vary a written contract (1). 'Every bill or note," says Parke, J., "imports two things, value received, and an engagement to pay the amount on certain specified terms. Evidence is admissible to deny the receipt of value, but not to vary the engagement" (m). (j) Webb v. Spicer, 19 L. J., Q. B. 34; 13 Q. B. 894; on error in Exchequer Chamber. (k) Walker v. Jones, L. R., 1 Pr. C. 50, ante, p. 14. (1) Hoare v. Graham, 3 Camp. 57; Free v. Hawkins, 8 Taunt. 92; 1 Moore, 28; Woodbridge v. Spooner, 8 B. & Al. 233; 1 Ch. R. 661; Moseley v. Hanford, 10 B. & C. 729; Foster v. Jolly, 1 C., M. & R. 703; 5 Tyr. 255; Richards v. Thomas, 1 C., M. & R. 772; Holt v. Miers, 9 C. & P. 191; Besant v. Cross, 10 C. B. 895; Stott v. Fairlamb, 53 L. J., Q. B. 47. (m) Abbott v. Hendricks, 1 M. In Pike v. Strect, 1 Dans. & discounted the bill, he verbally agreed, in the event of its being dishonoured, not to proceed against the drawer, who had indorsed the bill to him. In Abrey v. Crux, the contrary was held by the Court of C. P., dubitante that most eminent judge, the late Mr. Justice Willes, L. R., 5 C. P. 37; 39 I. J. 9. An indorsement was perhaps excepted from the rule in the text on account of its twofold operation, as an express assignment to the indorsee of the right against the acceptor, and as implying a conditional promise by the indorser to pay on his default. This conditional promise might be varied by parol so as to increase the indorser's liability. Phipson v. Kelner, 4 Camp. 285; Burgh v. Legge, 5 M. & W. 418; Brett v. Levett, 13 East, 214. It might, therefore, by analogy well be varied so as to diminish it. Byles ou Bills, 6th Amer. ed. 157. But see Martin v. Cole, 14 Otto, 30; Kealing v. Van Sickle, 39 Amer. R. 101; Stack v. Buck, ib. 113. By sect. 16 a drawer or indorser may limit his liability to all parties, or increase it, by express stipulation on the bill or note, and will be held like an acceptor or maker to his written contract. CHAPTER An instrument under seal may be delivered as an escrow, that is to say, with a condition that it shall not operate as a deed, except in a certain event. An instrument under Delivery in seal, which is to operate as an escrow, must be delivered, the nature of not to the obligee, but to a stranger, and regularly the condition should be expressed by apt words used at the time of the delivery (n). In analogy with a deed, it has been held that a written. and signed simple contract may be delivered with an express parol condition precedent, that it is not to take effect except in a certain event. And the instrument may be so delivered, not only to a stranger, but by one party to the other (o). And evidence of the parol condition is admissible not only when it is relied on as a condition, but also when an action is brought upon it as an agreement (p). When such a doctrine is extended to a bill of exchange or promissory note, it is obvious that it must not be applied to the injury of a holder for value without notice. an escrow. renew. An agreement to renew, without more, is an agreement Agreement to to renew once only (q). But the party liable is not bound to apply during the currency of the bill; he may do so within a reasonable time after the bill falls due (†). Still, as between immediate parties, or remote, other than a holder in due course, the delivery required to complete any contract on a bill or note, may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the bill or note. Code, s. 21. Hence, as between immediate parties, Pike v. Street seems to apply; but when the bill is in the hands of a remote party for value and without notice, Abrey v. Crux. As to what parties are immediate, see post, Chapter on CONSIDERATION. (n) Sheppard's Touchstone, 58; see Murray v. Earl of Stair, 2 B. & C. 82, where the Court of King's Bench expressed an opinion that it was not indispensable that express words should be used at the time, but that the condition might be gathered from circumstances. (0) Code, s. 21 (2) b. Jones, 17 C. B. 625; Davis v. Pym v. Campbell, 6 E. & B. 370; Wallis (p) Hindley v. Lacey, 34 L. J., (q) Innes v. Munro, 1 Exch. 473. See, as to an agreement to renew being used as a defence to an action, Flight v. Gray, 3 C. B., N. S. 320; Webb v. Spicer, 13 Q. B. 886, 894; Salmon v. Webb, 3 H. L. Cas. 510. The point did not arise in Innes v. Munro. (r) Maillard v. Page, L. R., 5 Ex. 312. A substituted bill is in general held under the same rights and title as the one it replaces. Lee v. Zagury, 8 Taunt. 114. B.B.E. I CHAPTER Agreement on A defendant has a right at the trial to call on the plaintiff to read any indorsements that may be on the bill (s). Though it be necessary that the agreement affecting the bill must be operation of the bill or note should be in writing, it is not necessary in pleading to aver that it is in writing (t). read. Pleading. (s) Richards v. Frankum, 9 C. & P. 221. As to agreements by clerks in fraud of their employers, see Bosanquet v. Foster, 9 C. & P. 659; Bosanquet v. Corser, 9 C. & P. 664. (1) Kearns v. Durell, 18 L. J., C. P. 28; 6 C. B. 596. See Gilbert v. Whitmarsh, 8 Q. B. 969; Austin v. Young, L. R., 4 C. P. 553. BILLS and notes were exempt from stamp duty till 22 When stamps Geo. 3, c. 33. This act was repealed and followed by were first imseveral others containing some regulations still in force, posed on bills though the duties were in many cases altered by the last and notes. general Stamp Act, 55 Geo. 3, c. 184. The duties imposed by this act were for the most part again altered by the 16 & 17 Vict. c. 59, and the 17 & 18 Vict. c. 83, which first introduced the use of adhesive stamps. The Stamp Act of 1870, 33 & 34 Vict. c. 97 (a), came The present into operation on the first day of January, 1871, and is the act. act now in force. (a) Followed by the Stamp Duties Management Act, 33 & 34 Vict. c. 98, and the Inland Revenue Repeal Act, 33 & 34 Vict. c. 99, in the schedule to which will be found such sections CHAPTER How instru ments are to be written and stamped, Instruments to be separately charged with duty in certain cases. As to the use of The following are the provisions contained in the act and schedule thereto, which relate to bills of exchange and promissory notes: By sect. 7 (1), Every instrument written upon stamped material is to be written in such manner, and every instrument partly or wholly written before being stamped is to be so stamped, that the stamp may appear on the face of the instrument, and cannot be used for or applied to any other instrument written upon the same piece of material. (2) If more than one instrument be written upon the same piece of material, every one of such instruments is to be separately and distinctly stamped with the duty with which it is chargeable. By sect. 8, Except where express provision to the contrary is made by this or any other act (1) An instrument containing or relating to several distinct matters is to be separately and distinctly charged as if it were a separate instrument, with duty in respect of each of such matters. (2) An instrument made for any consideration or considerations in respect whereof it is chargeable with ad valorem duty, and also for any further or other valuable consideration or considerations, is to be charged with duty in respect of such last-mentioned consideration or considerations as if it were a separate instrument made for such consideration or considerations only. By sect. 9 (1), A stamp which by any word or words on appropriated the face of it is appropriated to any particular description stamps. of instrument is not to be used, or, if used, is not to be available, for an instrument of any other description. Money in foreign or colonial cur rency to be valued. Stock and marketable (2) An instrument falling under the particular description to which any stamp is so appropriated as aforesaid is not to be deemed duly stamped, unless it is stamped with the stamp so appropriated. By sect. 11, Where an instrument is chargeable with ad valorem duty in respect of any money in any foreign or colonial currency, such duty shall be calculated on the value of such money in British currency according to the current rate of exchange on the day of the date of the instrument. By sect 12, Where an instrument is chargeable with ad valorem duty in respect of any stock or of any marketable |