note, it is no variance to omit it; Price v. Mitchell, 4 Camp. 200; Williams v. Waring, 10 B. & C. 2; and, this seems to be now settled, Masters v. Baretto, 8 C. B. 433, notwithstanding Trecothick v. Edwin, 1 Stark. 468, contra. And, the reason is not because a writing in the corner may not be part of a contract, but because by the usage of merchants it is a mere memorandum, there written for the convenience of parties. Per cur. Warrington v. Early, 2 E. & B. 766; 23 L. J., Q. B. 47. But, where a note was alleged to be payable at a certain place, and it was only made so payable by a memorandum at the bottom, Abbott, C. J., held it no variance; Hardy v. Woodroofe, 2 Stark. 319; Sproule v. Legg, 3 Stark. 157; and, the reason seems to be that, if payable generally, it is payable at the place named. Blake v. Beaumont, 4 M. & Gr. 7. Variance in consideration.] The words "value received," in a bill payable to the drawer's order, mean value received by the drawee; and if stated to be value received by the drawer, it is a variance. Highmore v. Primrose, 5 M. & S. 65; Priddy v. Henbrey, 1 B. & C. 674. But, where the bill is drawn payable to the order of a third person, "for value received," it is no variance to state that it was for value received "of the drawer." Grant v. Da Costa, 3 M. & S. 351. "Value received," in a note, imports value received from the payee. Clayton v. Gosling, 5 B. & C. 360. Variance in the sum. 2.] The money mentioned in the statement of claim on a bill means English money; if the bill is really for foreign money it is a variance. Kearney v. King, 2 B. & A. 301; Sprowle v. Legge, 1 B. & C. 16. By sect. 9, "(2) Where the sum payable," by a bill, 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." Ambiguous and irregular instruments.] Sect. 3(1), ante, p. 341, defines a bill of exchange, and (2) enacts that an instrument not complying with the conditions therein stated is not a bill. See also sects. 6 (2) and 7 (2), ante, p. 341. By sect. 5, "(2) Where in a bill drawer and drawee are the same person (vide sect. 2, ante, p. 340), "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." By sect. 7, (3) Where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer." 66 The following instrument, "I promise to pay to J. B. or order," &c., signed "J. B." with J. G.'s name and address in the corner, and J. G.'s name written across it as an acceptance, and indorsed by J. B., may be treated by the holder as against J. B., as a note by him; Edis v. Bury, 6 B. & C. 433; and semble, at the holder's election as a bill of exchange. Id. Pay without acceptance to the order of J. C. F.," signed by the manager on behalf of a joint-stock banking company at one place and addressed to the company at another, is, as against a partner in the company, a promissory note. Miller v. Thomson, 3 M. & Gr. 576. 66 The manager of an incorporated company wrote to the cashier thus: "53 days after date credit P., or order, with the sum of 500l., claimed per Cleopatra,' in cash on account of this corporation," signed by the manager. This was held to be a bill of exchange. Ellison v. Collingridge, 9 C. B. 570; 19 L. J., C. P. 268. "I promise to pay T. L. or order," signed H. O.: the name of the defendant was on the left corner, and his acceptance across it. Held, that T. L. might sue defendant on it as a bill of exchange. Lloyd v. Oliver, 18 Q. B. 471; 21 L. J., Q. B. 307; and semb., it might have been treated as either a bill or a note as against H. O. Id. An instrument payable to order, with a direction "at Messrs. A. B.," instead of to Messrs. A. B., may also be treated as a bill or note, in an action against the drawer. Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp. 115. Without the drawer's signature, a bill though accepted is of no force (see sect. 3, ante, p. 341), and cannot be treated as a promissory note; Stoessiger v. S. E. Ry. Co., 3 E. & B. 549; 23 L. J., Q. B. 293; Goldsmid v. Hampton, 5 C. B., N. S. 94; 27 L. J., C. P. 286; M'Call v. Taylor, 19 C. B., N. S. 301; 34 L. J., C. P. 365. So, a bill not directed to any drawee is void as a bill, and an acceptance by some one, to whom it is not directed, is no acceptance; Peto v. Reynolds, 9 Exch. 410; Davis v. Clarke, 6 Q. B. 16; unless he be an acceptor for honour; Polhill v. Walter, 3 B. & Ad. 122. An acceptance where there is no drawee named may make the person accepting liable as on a promissory note by himself. Peto v. Reynolds, supra. In Fielder v. Marshall, 9 C. B., N. S. 606; 30 L. J., C. P. 158, S. M. was sued on the following instrument:-"Pay to Mrs. E. F., or order," (Signed) "A. L.;" directed "To Mrs. E. F., Nelson Lodge, Chelsea," and across was written, "Accepted, S. M.; "-the whole document, except "A. L.," was written by the defendant, and was given by him to E. F. to secure a debt from A. L. to her; and it was held that the address, "To Mrs. E. F.," might be treated as a repetition of the payee's name, and not as a drawee, and the document as a promissory note made by S. M. Where the acceptor does not intend to pay to the actual order of the named payee A., although the name may happen to fit an existing person, the payee is fictitious within sect. 7 (3), ante, p. 349, and the bill may be treated as payable to bearer. Vagliano v. Bank of England, 22 Q. B. D. 114, 115. But it is otherwise where he intended to pay to the order of A., not knowing that the drawer's signature was forged. S. C., affirmed in C. A., 23 Q. B. D. 243. For fictitious means fictitious to the knowledge of the party sought to be charged on the bill. Id. Payee against Acceptor. The proofs in this action entirely depend upon the pleadings. If the acceptance be intended to be put in issue, it must be traversed by the statement of defence. See post, Defence, p. 384. Bill when payable-Statute.] Sects. 10, 11, ante, p. 342, respectively define what bills are payable on demand, and what bills are payable at a determinable future time. By sect. 14, "Where a bill is not payable on demand" (vide sect. 10, ante, p. 342) "the day on which it falls due is determined as follows: "(1.) Three days, called days of grace, are, in every case where the bill itself otherwise does not provide, added to the time of payment as fixed by the bill, and the bill is due and payable on the last day of grace: Provided that (a.) When the last day of grace falls on Sunday, Christmas Day, Good Friday, or a day appointed by Royal proclamation as a public fast or thanksgiving day, the bill is, except in the case hereinafter provided for, due and payable on the preceding business day" (vide sect. 92, post, p. 372); "(b.) When the last day of grace is a bank holiday (other than Christmas Day or Good Friday) under the Bank Holidays Act, 1871, and Acts amending or extending it, or when the last day of grace is a Sunday and the second day of grace is a bank holiday, the bill is due and payable on the succeeding business day" (vide sect. 92, post, p. 372). "(2.) Where a bill is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment. "(3.) Where a bill is payable at a certain period after sight, the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for non-acceptance, or for non-delivery. (4.) The term 'month' in a bill means calendar month." By sect. 65, "(5) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for non-acceptance, and not from the date of the acceptance for honour." The provision in italics is new. The Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), s. 1, appoints as bank holidays, Easter Monday, Whitsun Monday, the first Monday in August, and December 26th, if a week day. If it be a Sunday, then the holiday is December 27th; 38 & 39 Vict. c. 13, s. 2. By 34 & 35 Vict. c. 17, s. 5, these days may in any year be altered by Order in Council; and her Majesty may by proclamation appoint other days to be kept as bank holidays (sect. 4). Bill when payable.] It follows from sect. 14 (1), ante, p. 350, that where a fast-day alone is proclaimed, the bills due that day are payable the day before, but if the proclamation further appoint the day to be kept as a bank holiday, they are payable the day after the fast-day. Where a bill is drawn at so many months after date, calendar months are intended, sect. 14 (4), supra; and the day on which it falls due is always regulated by the day of the date, irrespective of the length of the months, and in ordinary cases will be the day with the same number in the last month of the currency; thus a bill drawn at two months on the 10th of January, will be due on the 10th of March. But, if the date be one of the last days of a month having more days than the month in which the bill becomes due, then the bill will be due on the last day of that month: thus, bills drawn, at one month, on the 28th, 29th, 30th, or 31st of January, will, it would seem, in ordinary years, be all due on the 28th of February, and with the days of grace payable on the 3rd of March; Byles on Bills, 11th ed., p. 204; Story on Bills, 2nd ed. s. 330, pp. 74, 75; Marius, 4th ed. p. 18; and the dicta of the judges in Freeman v. Read, 4 B. & S. 174; 32 L. J., M. C. 226, and in Webb v. Fairmaner, 3 M. & W. 473. Acceptance statute.] By sect. 2, "Acceptance means an acceptance completed by delivery or notification," as to which vide, sect. 21, ante, p. 343. Sect. 17. (1.) The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. "(2.) An acceptance is invalid unless it complies with the following conditions, namely: "(a.) It must be written on the bill and be signed by the drawee" (19 & 20 Vict. c. 97, s. 6). "The mere signature of the drawee without additional words is sufficient" (41 & 42 Vict. c. 13). "(b.) It must not express that the drawee will perform his promise by any other means than the payment of money.' As to acceptance of a bill drawn in a set, vide sect. 71 (4), post, p. 353. As to signature by agent, vide sect. 91 (1), ante, p. 340. Sect. 18. "A bill may be accepted, "(1.) Before it has been signed by the drawer, or while otherwise incomplete: "(2.) When it is overdue, or after it has been dishonoured by a previous refusal to accept, or by non-payment: "(3.) When a bill payable after sight is dishonoured by non-acceptance, and the drawee subsequently accepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance." Sect. 19. " (1) An acceptance is either (a) general or (b) qualified. (2) A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn. In particular an acceptance is qualified which is "(a.) conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated: "(b.) partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn: "(c.) local, that is to say, an acceptance to pay only at a particular specified place: " An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere (1 & 2 Geo. 4, c. 78, s. 1): "(d)) qualified as to timeome one or more of the drawees, but not of all." By sect. 21 (1), ante, p. 343, the acceptor's contract is incomplete and revocable until delivery of the bill has been made, or notification of acceptance given as described in that section. By sect. 44 (1), post, p. 366, "the holder of a bill may refuse to take a qualified acceptance." As to the effect of taking such an acceptance, vide sect. 44 (2), post, p. 366. Sect. 52. (1.) When a bill is accepted generally presentment for payment is not necessary in order to render the acceptor liable. (2.) When by the terms of a qualified acceptance" (vide sect. 19, supra)" presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures. 66 (3.) In order to render the acceptor of a bill liable it is not necessary to protest it, or that notice of dishonour should be given to him." Sect. 54. "The acceptor of a bill by accepting it "(1.) Engages that he will pay it according to the tenor of his acceptance" (vide sect. 19, supra): "(2.) Is precluded from denying to a holder in due course" (vide sect. 29, ante, p. 343): "(a.) The existence of the drawer, the genuineness of his signa ture, and his capacity and authority to draw the bill; (b.) In the case of a bill payable to drawer's order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement; "(c.) In the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to indorse, but not the genuineness or validity of his indorsement." 66 By sect. 71 (4), where a bill is drawn in a set, The acceptance may be written on any part, and it must be written on one part only. ...... 'If the drawee accepts more than one part, and such accepted part get into the hands of different holders in due course" (vide sect. 29, ante, p. 343), "he is liable on every such part as if it were a separate bill." 66 Acceptance, general or qualified.] A conditional acceptance will not support the allegation of a general one, though the condition has been performed. Langston v. Corney, 4 Camp. 177; Ralli v. Sarell, D. & Ry. N. P. C. 33; Swan v. Cox, 1 Marsh. 176. But where the drawee has accepted on condition of an extension of time for payment, the indorsee may sue as on a bill accepted payable at the postponed date. Russell v. Phillips, 14 Q. B. 891. Drawee of a bill, dated 8th September, at four months, accepted generally, adding the words "due 11th December." Held, a memorandum for his own convenience perhaps accidentally misdated, and not a qualified acceptance. Fanshawe v. Peet, 2 H. & N. 1 ; 26 L. J., Ex. 314. Accepted, payable on giving up a bill of lading for goods, &c., per Amazon," is a conditional acceptance, binding the holder to give up the bill of lading on presentment for payment, but, not imposing on him a further condition to the acceptor's liability, that the bill of lading should be given up on the very day the bill falls due. Smith v. Vertue, 9 C. B., N. S. 214; 30 L. J., C. P. 56. A bill of exchange was drawn by F. payable "to order F.," the drawee struck out the word "order," and accepted the bill "in favour of F. only, payable at the A. Bank;" it was held, in an action by indorsees for value, that there was a general acceptance of a negotiable bill. Decroix v. Meyer, 25 Q. B. D. 343, C. A. Whether an acceptance be general or qualified is a question of law for the judge. Sproat v. Matthews, 1 T. R. 182. An acceptance, expressed to be payable at a banker's or other place, was formerly held to be a special or qualified, and not a general acceptance. Rowe v. Young, 2 B. & B. 165. But by sect. 19 (2), ante, p. 352, replacing Onslow's Act (1 & 2 Geo. 4, c. 78), s. 1, such accceptance is general unless it expressly states that the bill is to be paid there only, and not elsewhere. A bill which is drawn payable at a particular place is within this section; there being no distinction between the case where the bill is so rendered payable by the language of the drawer, or of the acceptor; and unless the acceptance be special within the statute, it is unnecessary, as against the acceptor, to aver or prove any presentment. Selby v. Eden, 3 Bing. 611; Fayle v. Bird, 6 B. & C. 531. The use of the word "only" is not essential to qualify the acceptance, if the words "and not elsewhere" are inserted. Higgins v. Nichols, 7 Dowl. 551. By sect. 52 (1), ante, p. 352, when a bill is accepted generally, presentment for payment is not necessary in order to render the acceptor liable; and if the holder neglect to present, and the bankers, at whose house it is made payable generally, fail, with money of the acceptor in their hands, the acceptor is not thereby discharged. Turner v. Hayden, 4 B. & C. 1. But, by sect. 54 (1), ante, p. 352, if the acceptance is local, the plaintiff must prove presentment at the place named, in order to charge the acceptor; and this was the rule at common law. Rowe v. Young, supra. An acceptance payable at the acceptor's bankers is equivalent to an order on the banker to pay the bill to any holder who can by law give a valid discharge for it, and to debit his customer with the amount. Robarts v. Tucker, 16 Q. B. 560; 20 L. J., Q. B. 270, Ex. Ch. VOL. I. A A |