The foregoing clause is copied from the Imperial Act 8 17 without change. Probably no definition of a bill of exchange Bill dehas yet been given which is not open to criticism. The pres- fined. ent one is not the most felicitous, as will be seen on comparing it with the second part of the section.

This definition also includes a cheque and is declaratory of the former law: McLean v. Clydesdale Banking Co., 9 App. Cas., per Lord Blackburn, at p. 106 (1883).

The following were the provisions on the subject contained in the Civil Code of Lower Canada: "Article 2279. A bill of exchange is a written order by one person to another for the payment of money absolutely and at all events.Article 2280. It is essential to a bill of exchange that it be in writing and contain the signature or name of the drawer; that it be for the payment of a specific sum of money only; that it be payable at all events without any condition."

The definition in the Code is taken from Kent's Commentaries, vol. 3, p. 74. Kent copies it from Bayley on Bills, p. 1, and speaks of it as "a concise, clear and accurate production." Blackstone says a bill of exchange is "an open letter of request from one man to another desiring him to pay a sum of money therein named to a third person on his account:" 2 Comm. 466. Chitty follows Blackstone. For a very full list of the different definitions given by various authors, see 1 Randolph, § 3, note.

In France the law governing bills of exchange differs in some important particulars from that of England, as it may be seen from the following definition taken from the Code de Commerce, Art. 110:-" A bill of exchange is drawn from one place on another. It is dated. It sets forth the sum to be paid; the name of the person who is to pay; the time and place of payment; the value given in money, goods, account or otherwise. It is payable to the order of a third party, or of the drawer himself. It must state whether it be the first, second, third, or fourth, etc., of the same tenor and contents."

The New York Negotiable Instruments Law, which has been adopted in thirty-three other States and Territories, and

$17

Bill defined.

the district of Columbia, lays down the following rules as to the form of a negotiable instrument: "§ 20. An instrument to be negotiable must conform to the following requirements: 1. It must be in writing and signed by the maker or drawer. 2. Must contain an unconditional promise or order to pay a sum certain in money. 3. Must be payable on demand or at a fixed or determinable future time. 4. Must be payable to order or to bearer; and 5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty."

A bill of exchange is sometimes called a draft, and after it has been accepted, sometimes an acceptance. It may be in any language, and in any form of words that complies with the requirements of the foregoing definition or the provisions of the Act. Where an instrument is so ambiguous as to make it doubtful whether it is a bill of exchange or a promissory note, the holder may, as against the maker, treat it as either: Edis v. Bury, 6 B. & C. 433 (1827); Forbes v. Marshall, 11 Ex. 166 (1855); Fielder v. Marshall, 9 C. B. N. S. 606 (1861). So also, where drawer and drawee are the same person: sec. 26.

A bill taken for a debt in the ledger is a "book debt:" In re Stevens, W. N. (1888), 110, 116; Dawson v. Isle [1906] 1 Ch. 633.

"An Unconditional Order."-A bill of exchange is an order, and is in its nature the demand of a right, not the mere asking of a favor, and therefore a supplication made or authority given to pay an amount is not a bill: Daniel, § 35. The person addressed is "required" to pay the sum named. The insertion of mere terms of courtesy, however, will not destroy its validity. It seems impossible to reconcile the conflicting decisions on this point. The same may be said to be true as to what orders have been held to be "unconditional." As to an instrument payable on a contingency, see section 18 and the notes and illustrations thereunder. A promissory note is an unconditional promise to pay: sec. 176. For illustrations of irregular instruments in this respect, see notes under that section.

ILLUSTRATIONS.

The following have been held to be valid bills:

1. "Mr. Warren, please let the bearer, William Tuke, have the amount of £10, and you will oblige me, B. B. Mitchell ": Reg. v. Tuke, 17 U. C. Q. B. 296 (1858).

2. "Mr. Nelson will much oblige Mr. Webb by paying J. Ruff, or order, twenty guineas on his account": Ruff v. Webb, 1 Esp. 129 (1794).

3. "To the Cashier,-Credit P. & Co., or order, with £500, claimed, per Cleopatra, in cash, on account of this corporation, A. C., Managing Director": Ellison v. Collingridge, 9 C.. B. 570 (1850); Allen v. The Sea Fire and Life Assurance Co., 9 C. B. 574 (1850).

4. An order written under a note "Please pay the above note, and hold it against me in our settlement": Leonard v. Mason, 1 Wend. 522 (1828).

5. Also a like order written under an account: Hoyt v. Lynch, 2 Sandf. 328 (1847).

6. "Please let the bearer have $50. I will arrange it with you this forenoon. Yours truly": Bresenthal v. Williams, 1 Duval, 329 (1864).

The following have been held not to be valid bills:

1. An open letter from one Government officer to another desiring the latter to pay plaintiff a certain sum of money due him by the department: McLean v. Ross, 3 Rev. de Leg. 434 (1816).

2. "Please to send £10 by bearer, as I am so ill I cannot wait upon you": Rex v. Ellor, 1 Leach, 323 (1784).

3. "Mr. L., please to let the bearer have £7, and place it to my account, and you will much oblige your humble servant, S.": Little v. Slackford, 1. M. & M. 71 (1828).

4. A note written by the creditor to his debtor at the foot of the creditor's account requesting the debtor to pay the account to the creditor's agent: Norris v. Solomon, 2 M. & Rob. 266 (1840).

5. "To E. & S.-We hereby authorize you to pay on our account to the order of G., £6,000, de W. & S.": Hamilton v. Spottiswoode, 4 Ex. 200 (1849).

1 6. An instrument in the form of a cheque with the following words added: "Provided the receipt form at the foot hereof is duly signed, stamped and dated": Bavins v. London and S. W. Bank [1900] 1 Q. B. 170.

$ 17

§ 17

Cannot be varied by

parol.

Illustrations.

"In Writing."-Writing as defined in the Interpretation Act, R. S. C. c. 1, s. 34 (31), "includes words printed, painted, engraved, lithographed, or otherwise traced or copied." It is not material whether the writing be in pencil or ink, though as a matter of permanence and security ink is of course preferable. A writing in pencil is within the meaning of that term at common law, and within the custom of merchants: Geary v. Physic, 5 B. & C., per Bayley, J., at p. 238 (1826). See also Jeffery v. Walton, 1 Stark. 267 (1816); Rymes v. Clarkson, 1 Phil. 22 (1809); Dickenson v. Dickenson, 2 Phil. 173 (1814).

It is a general rule of law that contracts in writing cannot be varied by extrinsic evidence of the intention of the parties: Burges v. Wickham, 3 B. & S. 669 (1863); Taylor, § 1132; or as it is put in the Civil Code, Art. 1234, “Testimony cannot in any case be received to contradict or vary the terms of a valid written instrument." According to this rule the contracts of the parties to bills of exchange and promissory notes as appearing upon the face of the instrument, whether of drawer, acceptor, maker or indorser, cannot be varied by parol evidence: Hart v. Davy, 1 U. C. Q. B. 218 (1843); Ewart v. Weller, 5 ibid. 610 (1849); Adams v. Thomas, 7 ibid. 249 (1850); Davis v. McSherry, ibid. 490 (1850); Hall v. Francis, 4 U. C. C. P. 210 (1854); Hammond v. Small, 16 U. C. Q. B. 371 (1858); Armour v. Gates, 8 U. C. C. P. 548 (1859); Street v. Beckwith, 20 U. C. Q. B. 9 (1860); Moore v. Sullivan, 21 ibid. 445 (1862); Chamberlin v. Ball, 5 L. C. J. 88 (1860); Scott v. Quebec Bank, 7 L. N. 343 (1884); Decelles v. Samoisette, M. L. R. 4 S. C. 361 (1888); Inglis v. Allen, 7 N. S. (1 G. & O.) 101 (1867); Graham v. Graham, 11 N. S. (2 R. & C.) 265 (1877); Taylor v. McFarlane, 12 N. S. (3 R. & C.) 190 (1878); Smith v. Squires, 13 Man. 360 (1901); Emerson v. Erwin, 10 B. C. R. 101 (1903).

Thus in an action brought upon a bill or note, it is not admissible to prove that at the time of making it was agreed verbally that the bill or note should be renewed or not paid at maturity: Bradbury v. Oliver, 5 U. C. O. S. 703 (1839); Durand v. Stevenson, 5 U. C. Q. B. 336 (1848); Hayes v. Davis, 6 ibid. 396 (1849); McQueen v. McQueen, 9 ibid.

$ 17

Cannot be

536 (1852); Bank of Upper Canada v. Jones, 1 U. C. Pr. R. 185 (1854); Harper v. Paterson, 14 U. C. C. P. 538 (1864); Vidal v. Ford, 19 U. C. Q. B. 88 (1859); Porteous v. Muir, varied by 8 O. R. 127 (1885); Letellier v. Cantin, Q. R. 11 S. C. 64 parol. (1896); Imperial Bank v. Brydon, 2 Man. 117 (1885); Young v. Austen, L. R. 4 C. P. 553 (1869); New London Credit Syndicate v. Neale, [1898] 2 Q. B. 487; or, that the instrument expressed to be payable at a certain time should be payable only in a given event: Harvey v. Geary, 1 U. C. Q. B. 483 (1845); Reed v. Reed, 11 ibid. 26 (1853); Royal Canadian Bank v. Minaker, 19 U. C. C. P. 219 (1869); Stultzman v. Yeagley, 32 U. C. Q. B. 630 (1872); McNeil v. Cullen, 37 N. S. 13 (1904); Moore v. Grosvenor, 30 N. B. 221 (1890); Foster v. Jolly, 1 C. M. & R. 703 (1835); Heslop v. Phillips, 24 V. L. R. 498 (1898); or that certain of the makers were not to be held liable: Murphy v. Bryden, 7 O. W. R. 250 (1906); or that it should be payable. by instalments or in any other manner than expressed in the instrument: Besant v. Cross, 10 C. B. 895 (1851); or, that a note payable on demand should not be payable until the death of the maker; Woodbridge v. Spooner, 3 B. & Ald. 233 (1819); or, that it should be only to secure the payment of interest during the life of the payee: Hill v. Wilson. L. R. 8 Ch. 888 (1873); or that it was agreed that a note making no mention of interest was to bear interest from its date: Dombroski v. Laliberté, Q. R. 17 S. C. 57 (1905); or, that an indorser at the time of indorsing had agreed to waive his right to have notice of dishonor: Free v. Hawkins, 8 Taunt. 92 (1817); Leake on Contracts, p. 122; or that the maker was not to be liable, beyond the amount of money received by him: Conley v. Ashley, 1 O. W. R. 704 (1902).

tions.

But parol evidence is admissible to show that the date of Excep the bill or note is not the true date: section 29; or, that the delivery is incomplete and conditional only so that the contract is not operative: section 40 (b); or, to impeach the consideration for the contract: Northfield v. Lawrance, M. L. R. 7 S. C. 148 (1891); Abrey v. Crux, L. R. 5 C. P. 37 (1869); Downie v. Francis, 30 L. C. J. 22 (1885); Fisher v. Archibald, 8 N. S. (2 G. & O.) 298 (1871); Black v. Gesner, 3 N. S. (2 Thom.) 157 (1847); Gray v. Whit