are payable at a branch bank, unless specially made payable at such branch (q). The direction to place to account is unnecessary (r). A bill is sometimes directed to be paid "as per advice; sometimes "without further advice; sometimes "with or without further advice;" and sometimes, and more commonly, without any of these words. In the first case, it is said the drawee is not justified in paying without further advice (s). The drawer of a bill and the indorser of a bill or note may vary his contract so as either to increase or diminish his liability to all parties, by an express stipulation inserted in the instrument. He may entirely negative his own liability, or confine it to certain cases, or on the other hand enlarge it by waiving some of the holder's duties, as, for instance, presentment, notice of dishonour, &c. (†). (q) 3 & 4 Will. 4, c. 98, s. 6, which they must now be if issued there. Ibid., s. 4. () Laing v. Barclay, 1 B. & C. 398; 2 D. & R. 530; 25 R. R. 430. (8) Chitty, 162, 9th ed. But the order to pay must be unconditional (though it may be conditionally accepted), or it will not be a bill of exchange. Code, ss. 3 and 19. (t) Code, ss. 16 and 21. Phipson v. Kelner, 4 Camp. 285; Burgh v. Legge, 5 M. & W. 418; Brett v. Levett, 13 East, 214. A parol agreement affecting the delivery may be good as between immediate parties or remote other than a holder in due course. Sect. 21 (2) b. To affect such a holder the special terms must appear on the bill. Code, s. 38 (2). Pike v. Street, 1 M. & M. 226, was not followed in Abrey v. Crux, L. R., 5 C. P. 37; but seems to be in accordance with sect. 21 (2). "Pike v. Street has never been specifically overruled," per Grantham, J.; Henry v. Smith, 39 Solicitors' Journal, 559; Stagg Mantle & Co. v. Brodrick, 12 T. L. R. 12; but parol agreements seem to be confined to what Rigby, L.J., in New London Syndicate v. Neal, [1898] 2 Q. B. 487, so happily calls cases of the "Escrow class." The Code has expressly required a writing for a waiver, s. 62. See Lindley, L.J., in Edwards v. Walters, [1896] 2 Ch. p. 166 at line 19. Hence it will be prudent to commit agreements even between immediate parties to writing. The common mode of indorsing so as to decline liability is by adding the words 66 sans recours" to the indorsement. As to a qualified acceptance, see post, Chapter on ACCEPTANCE. 103 CHAPTER VII. OF AMBIGUOUS, CONDITIONAL, AND OTHERWISE IRREGULAR INSTRUMENTS. A NOTE cannot of course be made by a man to himself Note payable without more. Neither can it be made to himself and to the maker. another man (a). But a note made payable to the maker's order becomes, in legal effect, when indorsed in blank, a note payable to bearer (b); and when specially indorsed, a note payable to the indorsee or order (c). (a) See Moffatt v. Van Millingen, 2 B. & P. 124, n. ; 5 R. R. 557; Mainwaring v. Newman, ibid. 120; 5 R. R. 554 and see Teague v. Hubbard, 8 B. & C. 345. It was formerly a doubt whether a note promising to pay to the maker's order, or to the maker or order, were a note within the statute. Such a note was sued on in Richards v. Macey, 14 M. & W. 484. It should on principle seem, when indorsed by the maker in blank, to be in legal effect a note payable to bearer. So decided by the Court of C. P. since these observations were written. Browne v. De Winton, 17 L. J.. C. P. 281; 6 C. B. 336. A bill of exchange drawn and accepted by the same parties is in strictness rather a promissory note, though capable of being treated as a bill. Willans v. Ayers, L. R., 3 Ap. Ca. 133. (b) Code, s. 83 (2); Browne v. De Winton, 17 L. J., C. P. 280; 6 C. B. 336. So a bill payable to drawer's order is held not to be complete and regular on the face of it as a negotiable instrument till he indorse. Singer v. Elliott, 4 T. L. R. 524 ; Jenkins v. Comber, 1898, 2 Q. B. 168; 67 L. J. 780. (c) Gay v. Lander, 17 L. J., C. P. 287; 6 C. B. 336. CHAPTER Ambiguous instruments. Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person or incapable of contracting, or it should seem in general where an instrument is made in terms so ambiguous that it is doubtful whether it be a bill of exchange or a promissory note, the holder may treat it as either at his option (d). Thus, where for goods sold and delivered the defendant gave the plaintiff an instrument in the following form :£44 11s. 5d. London, 5th August, 1833. Three months after date I promise to pay Mr. John Bury, or order, forty-four pounds eleven shillings and five pence, value received. J. B. GRUTHEROT, 35, Montague Place, JOHN BURY. and Grutherot's name was written across the instrument as an acceptance, and Bury's name on the back as an indorsement, it was held that the plaintiff might treat the defendant Bury either as a drawer of a bill or maker of a note, and therefore was not bound to give him notice of dishonour (e). So where an instrument was in the following form : : 21st October, 1804. Two months after date pay to the order of John Jenkins, £78 118., value received. At Messrs. JOHN MORSON & Co. THOMAS STEPHENS. Lord Ellenborough held that it was properly a bill of exchange, but that perhaps it might have been treated as a promissory note, at the option of the holder (ƒ). (d) Code, s. 5 (2). Peto v. Reynolds, 9 Exch. 410; Armfield v. Allport, 27 L. J., Exch. 42; Fielder v. Marshall, 30 L. J., C. P. 158; 9 C. B. (N. S.) 606; and a Court of law, in furtherance of justice and the intentions of the parties, will be astute to put such a construction upon it, ut res magis valeat. But still, if it be a mere inchoate instrument, it is (until completed) neither a bill of exchange nor a promissory note. See M Call v. Taylor, 34 L. J., C. P. 365, and the preceding chapter. (e) Edis v. Bury, 6 B. & C. 433; 9 D. & R. 492; 30 R. R. 389; see Edwards v. Dick, 4 B. & Ald. 212; 23 R. R. 255; Block v. Bell, 1 M. & Rob. 149; see Dickenson v. Teague, 4 Tyrwh. 450; 1 C., M. & R. 241; Lloyd v. Oliver, 18 Q. B. 471. (f) Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp. 115; Gray v. Milner, 8 VII. A man may draw a bill on himself (g), and of that CHAPTER opinion were all the judges of the C. P. (h). Perhaps such a bill would be good where the drawer draws on himself payable to his own order (i); and a bill is sometimes drawn payable to the drawee's order. It is conceived that in the latter case, as well as the former, the instrument might, when accepted, be declared on as a promissory note of the drawee. But a bill payable to the drawee's order was formerly not a bill of exchange (k). If a man draw a bill upon himself, it may be treated by the holder as a note (1). So may a bill drawn by a banking company in one place on the same banking company in another place (m). An instrument which directs the drawee to pay without acceptance, is nevertheless a bill of exchange (n)." A note written by the creditor to his debtor at the foot of the creditor's account, requesting the debtor to pay that account to the creditor's agent, has been held not a bill of exchange, nor an order for the payment of money within the Stamp Act (0). Bills and notes must be for payment of money only, and not for the payment of money and the performance of some other act. Therefore (p), a note to deliver up horses and a wharf, and pay money at a particular day, was held Taunt. 739; 3 Moore, 90; 21 R. R. 525; R. v. Hunter, R. & R. C. C. 511; Armfield v. Allport, 27 L. J., Exch. 42. (g) Starke v. Cheesman, Carthew, 508; Dehers v. Harriot, 1 Show. 163; Robinson v. Bland, 2 Burr. 1077. (h) Magor v. Hammond, C. P. cited by Bayley, J., 9 B. & C. 364; and see Roach v. Ostler, 1 Man. & R. 120; Byles on Bills, 6th Amer. edition, p. 144. (i) 1 Pardessus, 351. (k) R. v. Bartlett, 2 M. & Rob. 362. See Peto v. Reynolds, 9 Exch. 410. See now Code, s. 5. (1) Roach v. Ostler, 1 M. & R. 120. on a bond or promissory note (p) Martin v. Chauntry, 2 Bills and notes must be for payment of a certain sum of money only. CHAPTER And for And for a sum And for the payment of money. Must not ment on a no promissory note. Nor must a bill or note be in the alternative, as to pay a sum of money, or render A. B. to prison (q). And it must be for money in specie or legal currency; therefore a promise to pay in three good East India bonds (r) is not a promissory note. And the sum must be certain, not susceptible of contingent or indefinite additions. Therefore, where an instrument promised to pay J. S. the sum of 657. with lawful interest for the same, and all other sums which should be due to him, Lord Ellenborough held that it was not a promissory note, even for the sixty-five pounds (s). Nor must the sum payable be subject to indefinite or contingent deductions. Thus, where the defendant promised to pay 4007. to the representatives of J. S., first deducting thereout any interest or money J. S. might owe to the defendant, it was held no promissory note (†). And for the payment of money. Where the instrument contains a stipulation that the money or a portion of it shall be paid by a set-off, it is no promissory note (u). A bill of exchange must be drawn unconditionally, suspend pay though the acceptor may make his acceptance conditional, and the drawer and indorsers may qualify in any way they please their contingent liability, provided the payee or indorsee choose to take the bill under those terms; so in a promissory note the promise must be to pay absolutely and at all events; and payment must not depend upon a contingency; for, as observed by Lord Kenyon (), "It would "Pay to — against 3 F. 1134. (q) Smith v. Boheme, Gilb. Ca. L. & E. 93; cited Lord Raym. 1396. Code, s. 17. (r) Bull, N. P. 272. The same has been held of a promise to pay in cash or Bank of England notes. Ex parte Imeon, 2 Rose, 225. But since 3 & 4 Will. 4, c. 98, Bank of England notes have been a legal tender for sums over 51. The present Tender Act, 33 & 34 Vict. c. 10, legalizes bank notes or gold to any amount, but limits silver to 408. and copper, or as it is now bronze coinage, to 18. (&) Smith v. Nightingale, 2 Stark. 375; 20 R. R. 694; Bolton v. Dugdale, 4 B. & Ad. 619; 1 N. & M. 412; 38 R. R. 326. (t) Smith v. Nightingale, 2 Stark. 375; 20 R. R. 694; Barlow v. Broadhurst, 4 Moore, 471; and see Leeds v. Lancashire, 2 Camp. 205; Bolton v. Dugdale, 4 B. & Ad. 619; 1 N. & M. 412; 2 Bligh. 79; 38 R. R. 326 Ayrey v. Fearnsides, 4 M. & W. 168. (u) Davies v. Wilkinson, 10 A. & E. 98: 2 P. & D. 256. (x) Carlos v. Fancourt, 5 T. R. 482; 2 R. R. 647. So a condition as to signing a special form of receipt may invalidate a cheque as such. Barins v. London & S. W. Bank, 15 T. L. R. 226. |