« ΠροηγούμενηΣυνέχεια »
other persons are made to appear to a counter-claim by notice. The object is to enable the Court to dispose of whole matters of dispute without cross-actions or circuity of actions;" but where the counter-claim would be inconvenient, the Court may order a separate action to be brought. By sections 88–90 of the Judicature Act of 1873 this enlarged right of counter-claim is extended to defendants in the County Courts.
8. In bankruptcy, all claims, whether for debt or for damages, may be set-off, however late they were contracted, if contracted without notice of a specific act of bankruptcy.
The debtor claiming the set-off may either go into the matter before the Commissioner, or bring a separate action against the assignees.
OF THE FORMS OF BILLS AND NOTES. 1. Distinctions between joint and joint and several
notes. 2. Bills always joint. 3. No precise form necessary for bills or notes. 4. Other matter may be contained in bills and notes,
without invalidating them. 5. Note may be payable to maker or order and indorsed. 6. Bills and notes under 20 shillings. 7. Certain matters of form which are convenient, but not
essential. 8. Bills must be drawn payable at all events and uncon
ditionally 9. Acceptor of bill may make his promise conditional;
but maker of note not. 10. Amount in figures at top of bill, how far of use
written words conclusive as to amount. 11. Time of paymentmon demand after sight. 12. Payee should be carefully described, and why: 13. Miscellaneous matters. 14. Bill of Exchange Act, on form generally. 15. The same on definition of inland bill. 16. The same on in whose favour bill should be drawn. 17. The same. Drawee must be named.
18. The same on where payee must be named. 19. The same on the requisites of negotiability. 20. The same on the amount payable. 21. The same on where bill is payable on demand. 22. The same on when bill payable at fixed time. 23. The same on omission of date. 24. The same on presumed correctness of date. 25. The same on referee in case of need. 26. The same on stipulations inserted by drawer. 27. The same on a signature on a blank stamp. 28. The same on signatures of drawer, indorser, and
acceptor. 29. The same on forged signatures. 30. The same on signatures by procuration. 31. The same on the liability of an agent signing as
such. 32. The same on bills in a set.
1. Where two or more persons, not being partners, join in making a proinissory note, it may either be a joint or a joint and several note. It is called joint when the words used express only one promise, though made by more than one person, as “ We promise to pay,
&c.;" and it is called joint and several when, in addition to the joint promise of the two makers, the words express a separate or several promise of each maker, as“We and each of us," or "We jointly and severally promise to pay, &c."
The last mentioned form is far preferable because the bolder gets two distinct promises, and a discharge of one promiser is not a discharge of the other.
2. The undertaking of the persons primarily liable on bills, where those persons are more than one, is always a joint and not a joint and several liability, bills being always directed to the drawees jointly and (if accepted) accepted jointly ; but if a bill be accepted in the name of a firm, as " B. D. & Co." (and not jointly by each partner, as "A B, CD"), either partner may be sued without the other. (As to execution, see chap. xxi, sec. 4.)
3. No precise form of words is necessary to constitute a promissory note, but any language importing a distinct promise to pay at all events and without condition is sufficient, as I undertake to account to A B or order for £50."
If there be no words amounting to a promise, the instrument is merely an I 0 U, or in some cases an agreement.
A bill should contain a distinct order to pay, and a note a distinct promise to pay, but no particular form is necessary in either.
Where a promissory note was in the words “I promise never to pay," the word never was struck out as being fraudulently inserted.
4. Other words may be contained in a note without invalidating it, as, for instance, a recital that deeds have been deposited by way of security for the payment of
5. A man may make a note payable to himself or order and endorse it, after which it becomes a complete note, but he cannot make a note to himself and another man.
6. Though bills and notes are usually written in certain established forms (see Appendix), it may yet be as well to lay down a few rules by way of enabling the reader to distinguish between a mere irregularity and a fatal error or omission.
Bills and notes for less than 20 shillings are forbidden under a penalty, and are void.
7. It is usual and proper, but not strictly necessary, to write at the top of a bill or note the name of the place where it is made.
With the exceptions above mentioned, a date, though usual and proper, is not strictly necessary; but if the bill be payable a certain time after date, time will count from the day of the drawing or making, of which the payee should make a memorandum on the back to assist his memory, if the date be omitted.
8. It may here be stated that it is essential that a bill or note should be drawn payable, either at some fixed date, or on the happening of an event which is certain to happen, as on the paying off of a Queen's ship.
And now that acceptances must be in writing, any condition on which the acceptor's liability is to depend must be in writing also, as "Accepted, payable on giving up bill of lading for 76 bags of cotton per ship R."
9. It will thus be seen that a bill of exchange may become a conditional undertaking on the part of the acceptor, and of every indorser who indorses after acceptance ; for though the drawer's direction to pay must be absolute, yet, if the holder is content with a qualified acceptance (see chap. vi), the contract may be conditional. But a promissory note can never become a conditional contract on the part of the person primarily liable.
10. It is usual and proper to write in the body of a bill or note in words, at full length, the sum for which the instrument is payable, thereby guarding against any mistake or alteration. It is also the practice to write at the top or bottom of the bill the same sum in figures ; this is meant merely to assist the eye, but may nevertheless be useful to supply an accidental omission in the body of the instrument, as if the word pounds be omitted by mistake.
But in case there be any difference between the sum stated in figures and the written sum, the latter will always be considered as the sum contracted for; and a banker at whose house the instrument is payable will not be justified in paying attention to the figures.
11. T'he time of payment is usually stated both in bills and notes. An instrument which is silent on this point will be payable on demand. It has already been stated (see chap. vi, sec. 5) that the words “after sight” mean after sight testified by acceptance, i.e. after acceptance, and if acceptance of such a bill be refused, it is dishonored; but a note, being incapable of acceptance, it is, when payable after sight, to be merely exhibited to the maker. As to days of grace, see chap. ix, sec. 6.
12. In promissory notes, and bills not payable to drawer or his order, but to a third party as payee, the payee should be particularly described. But if the instrument gets into the hands of a wrong payee, he can neither sue, nor confer a title by transfer or endorsement. The payee need not necessarily be described by his name, but he may be described by his office, as the master of the ship B,” or “the trustee under A's will."
Where there is any doubt about the name, or where the name is common, it may be well to add the designation of the payee's occupation ; and the word junior should be used to distinguish him from his elder relatives.
A person meant by the drawer to be the payee may fill up with his own name a blank left for the payee's name,
13. The words value received are not essential. The consideration may be stated in any other way or omitted altogether, but an alteration in the statement. of the consideration will be such a material change as will invalidate the instrument for want of a new stamp. (See ebap. xv.)
A bill should be properly directed to the drawee, but when he has once accepted it he cannot object to a mistake in the direction. But a bill cannot be addressed to one man, and accepted by another, except for honor. (See chap. vi, sec. 8.)
A bill, though accepted, cannot be sued upon without the drawer's signature, but it may be inserted at any time. A note may be signed by the maker in the body of the instrument, as “I, A B, promise to pay, &c.”
If any place of payment is stated in the body of a note, it is payable there only. As to the place where bills are made payable, whether in the body or the acceptance, see chapters 1 and 6.
Where the drawee is directed to pay as per advice or according to advice, it is not safe to pay without.
A promissory pote must not be expressed to be payable out of a particular fund; but a fund may be mentioned in a bill, merely by way of direction to the drawee how to reimburse himself.
Indorsements, though properly made on the back of bills and notes, are not invalid if made on the face.
Instruments defective as bills or notes may still be evidence of agreements, in which case, if over £20, they will generally require a stamp of 6d., which can be affixed after they are written.
A note beginning “I promise," and signed by more than one, is several as well as joint. (See sec. 1.)
It is no answer to an action on a joint and several promissory note, that one of the plaintiffs is one of the makers.
Without much repetition, it would be impossible to collect in this chapter all that has to be said on the form of bills and notes; but the reader will find remarks bearing on the subject in the chapters on Acceptance, Transfer, and Payment.