$17

Parol.

man, ibid. (1857); Lindsay v. Zwicker, 8 N. S. (2 G. & O.) 100 (1870); or to show (after complete performance) that when the note was made there was an oral agreement that if the maker paid interest to the payee and supported for life a relative of the latter, the note should be considered paid: McQuarrie v. Brand, 28 O. R. 69 (1896); or to show that the contract has been discharged by payment, release or otherwise: Carden v. Finley, 8 L. C. J 139 (1860); Phillips v. Sanborn, 6 ibid. 252 (1862); Gole v. Cockburn, 8 ibid. 341 (1864); Lalone v. Rolland, 10 ibid. 321 (1864); Converse v. Brown, 10 ibid. 196 (1865); Hamilton v. Perry, Q. R. 5 S. C. 76 (1894); Moore v. Grosvenor, 30 N. B. 221 (1890); Foster v. Dawber, 6 Exch. 839 (1851); Walker v. Johnson, 6 N. Z. L. R. 41 (1880); but see now section 142.

In an Australian case, Bank of South Australia v. Williams, 19 V. L. R. 514 (1893), it was held that parol evidence was admissible to show that plaintiff agreed at the time of the making of the note that the maker should not be liable on it. The authorities chiefly relied upon were Goss v. Nugent, 5 B. & Ad. 58 (1833), and Foster v. Dawber, 6 Exch. 839 (1851). The decision, however, is open to question, especially in view of the principle adopted in section 142 of the Act. A contemporaneous agreement in writing referring to a bill or note between the same parties may be binding: Jenkins v. Bossom, 13 N. S. (1 R. & G.) 540 (1880); Young v. Austen, supra; Brown v. Langley, 4 M. & Gr. 466 (1842); Salmon v. Webb, 3 H. L. Cas. 510 (1852); Lindley v. Lacy, 17 C. B. N. S. 578 (1864); Maillard v. Page, L. R. 5 Ex. 312 (1870); but the mere fact that a bill or note refers to a collateral writing or agreement which is conditional in its terms will not affect the bill in the hands of a holder without notice of its contents: Jury v. Barker, E. B. & E. 459 (1858); Taylor v. Curry, 109 Mass. 36 (1871).

"Addressed by One Person to Another."- Person here includes any body corporate and politic, and the representatives of such person and the heirs, executors, administrators or other legal representatives of such person: R. S. C. c. 1, s. 34 (20). The person addressing the bill is called the drawer, and the one addressed, the drawee. After ac

ceptance of the bill the latter is called the acceptor. This part of the definition is not strictly complied with when the drawer and drawee are the same person, or when the drawee is a fictitious person: sec. 26. The holder may treat such an instrument as a bill or note at his option. An instrument regular in form, except that it is not addressed to any drawee, is not a bill of exchange: Forward v. Thompson, 12 U. C. Q. B. 103 (1854); McPherson v. Johnston, 3 B. C. R. 465 (1894). The drawee need not be named; it is sufficient that he be described with reasonable certainty, so that the bill can be duly presented to the proper person: sec. 20.

A warrant in the form of a bill of exchange, signed by a committee of a city council and addressed to the city treasurer, is not a bill of exchange, as the drawer and drawee really represent the same person: Charlebois v. Montreal, Q. R. 15 S. C. 96 (1898). For the same reason a draft drawn by one branch of a bank on another branch of the same bank or a bank dividend warrant is not a bill or cheque: Capital & Counties Bank v. Gordon, [1903] A. C. 240.

"Signed."-The instrument is not a bill of exchange until signed by the drawer. He may sign a blank paper which may be subsequently filled up; sec. 31; or it may be accepted first and signed by the drawer afterwards: sec. 37. Even if accepted it is not a bill if it lack the drawer's signature: McCall v. Taylor, 19 C. B. N. S. 301 (1865); Reg v. Harper, 7 Q. B. D. 78 (1881); but if still in his hands it may be a security for the payment of money within section 75 of the Imperial Larceny Act, 1861: Reg. v. Bowerman, [1891] 1 Q. B. 112; or within section 364 (d), or section 396 of the Criminal Code.

§ 17

It may be signed in pencil: Geary v. Physic, 5 B. & C. Signature. 234 (1826); Brown v. Butchers' Bank, 6 Hill 443 (1844); Closson v. Stearns, 4 Vt. 11 (1831); Reed v. Roark, 14 Tex. 329 (1855); or with a cross or mark: Noad v. Chateauvert, 1 Rev. de Leg. 229 (1846); Paterson v. Pain, 1 L. C. R. 219 (1851); Thurber v. Desève, M. C. R. 125 (1854); Anderson v. Park, 6 L. C. R. 479 (1855); Collins v. Bradshaw, 10 ibid. 366 (1860); Coupal v. Coupal, 5 R. L. 465 (1873); Hubert v. Moreau, 12 Moore, 219 (1827); George v. Surrey, M. &

M'L.B.E.A.-4

$ 17

Signature.

M. 516 (1830); Baker v. Dening, 8 A. & E. 94 (1838); Re Bryce, 2 Curtis 325 (1839); Re Field, 3 Curtis, 752 (1843); Re Amiss, 2 Robertson, 116 (1849); Willoughby v. Moulton, 47 N. H. 205 (1866); Shank v. Butsch, 28 Ind. 19 (1867). Contra, Lagueux v. Casault, 2 Rev. de Lég. 28 (1813), and Jones v. Hart, ibid. 58 (1819), overruled. Signing with a cross or mark is good even where the witness cannot sign and merely makes his mark: Remillard v. Moisan, Q. R. 15 S. C. 622 (1899).

In written contracts of various kinds it has been held or intimated that the following were sufficient, where it was clear that the parties intended to adopt them as their signatures initials, a trade or assumed name, a stamp, or a printed or engraved signature. See Saunderson v. Jackson, 2 B. & P. 238 (1800); Phillimore v. Barry, 1 Camp. 513 (1808); Schneider v. Norris, 2 M. & S. 286 (1814); Hyde v. Johnson, 2 Bing. N. C. 776 (1836); Jacob v. Kirk, 2 M. & · Rob. 221 (1839); Re Christian, 2 Robertson, 110 (1849); Re Hinds, 16 Jur. 1161 (1852); Caton v. Caton, L. R. 2 H. L. 143 (1867); Bennett v. Brumfit, L. R. 3 C. P. 28 (1867); Ex parte Birmingham Banking Co., L. R. 3 Ch. 653 (1868); Merchants' Bank v. Spicer, 6 Wend. 443 (1831); Weston v. Meyers, 33 Ill. 424 (1864); Randolph, §§ 63, 64; 1 Daniel, § 74.

The signature of a party need not be written with his own hand; it is sufficient if it be by some other person by or under his authority: sec. 4.

In the case of a corporation, the seal alone would be sufficient; but a seal is not necessary or even usual: sec. 5.

Bills of a company incorporated under the Dominion "Companies Act," may be drawn by any agent, officer, or servant in general accordance with his powers under the by-laws: R. S. C. c. 79, s. 32. Most of the provincial companies Acts have a similar provision as to companies incorporated under them.

The drawer usually signs at the foot of the bill, but his signature may be in the body of it or on any part so long as he signs as drawer: Byles, p. 97.

“On demand, or at a fixed or determinable future time." -Every bill of exchange falls under one or other of the above classes. The words are used in a special or technical sense and are explained respectively in sections 23 and 24. See these sections and the notes and illustrations under them. Bills are usually made payable "on demand" or "at sight," or a certain time "after date" or "after sight.”

§ 17

"A sum certain in Money."-A sum is certain within Money the meaning of the Act although payable with interest, or by stated instalments, or according to a certain rate of exchange: sec. 28. It must be for money alone; but it may be in the money of any country: Chitty on Bills, 153. A promissory note must also be for a sum certain in money: section 82. Money is not defined in the Act, and is used in its ordinary sense.

"What is Money? It is not necessarily either gold, silver or paper. It is just what the people of the country where the instrument is made choose to treat as money, in other words, as currency. If the note be for the payment of what is deemed money, it is wholly immaterial in the money of what country the note is payable:" Third National Bank v. Cosby, 41 U. C. Q. B., per Harrison, C.J., at p. 408 (1877). Money in Canada would be specie or Dominion. notes: see R. S. C. c. 25, an Act respecting the Currency; and c. 27, an Act respecting Dominion Notes. A cheque given by the purchaser of an insolvent's stock to the banker of the insolvent held to be a payment of money within the Assignment Act: Gordon v. Union Bank, 26 A. R. 155 (1899).

In the United States words of description prefaced to the word "money" have been held not to vitiate the instrument containing them, nor the addition of the words "gold" or "specie." Under the judgment of the Supreme Court of the United States in the Legal Tender cases, it makes no difference if a note be made payable in any particular kind of money, as gold or silver; any money obligation can be discharged by legal tender notes: Legal Tender cases, 12 Wall. 457 (1870). This doctrine was reaffirmed in Dooley v.

§ 17

Smith, 13 Wall, 605 (1871); Bigler v. Waller, 14 Wall, 298 (1871); and Railroad Co. v. Johnson, 15 Wall, 195 (1872). Notes payable in "current funds" and in "currency" have been held in many States to be promissory notes payable in

money.

ILLUSTRATIONS.

The following have been held to be valid bills or notes as being for a sum certain in money:

1. A note made in Canada promising to pay at Chicago "$893, American currency": Third National Bank v. Cosby, 41 U. C. Q. B. 402 (1877).

2. "To P.-Please pay to H. the sum of $138.40 for flooring supplied to your buildings on D. road and charge to my account, E.": Hall v. Prittie, 17 Ont. A. R. 306 (1890).

3. A promise to pay in cash or goods if the holder chooses to demand the former: McDonell v. Holgate, 2 Rev. de Leg. 29 (1818). But see Nos. 3, 4 and 14, post.

4. A note payable in American silver at par, before the proclamation declaring such silver uncurrent: Joseph v. Turcotte, 2 R. C. 479 (1871).

5. A note made in Nova Scotia promising to pay a sum of money in Boston "in currency": Souther v. Wallace, 20 N. S. 509 (1888). Affirmed in the Supreme Court of Canada, where it was held that "It is no objection to the validity of a promissory note that it is for the payment of a certain sum in currency, which must be held to mean United States currency when the note is payable in the United States": 16 S. C. Can. 717 (1889).

64

6. A note made in New Brunswick promising to pay $payable in United States currency": St. Stephen Ry. Co. v. Black, 13 N. B. (2 Han.) 139 (1870).

7. A note payable "in bankable currency": Dunn v. Allen, 24 N. B. 1 (1884).

8. A note payable "in legal tender money": National Bank v. Jarvis, 2 Man. 53 (1883).

North-Western

9. A note payable "in Canadian currency": Black v. Ward, 27 Mich. 193 (1873).

The following instruments have been held not to be valid bills or notes:

1. A promise to pay £14 "in carpenter's or joiner's work as required": Downs v. McNamara, 3 U. C. Q. B. 276 (1846).