Value.

§ 27 dolph, § 159. By the Civil Code of Lower Canada, Article 2285, when a bill contains the words "value received," value for the amount of it is presumed to have been received on the bill and upon the indorsements thereon: Larocque v. Franklin County Bank, 8 L. C. R. 328 (1858); Walters v. Mahan, 6 L. N. 316 (1883). Even where the words are in a bill, parol evidence may be received to prove the contrary: Davis v. McSherry, 7 U. C. Q. B. 490 (1850); Baxter v. Bilodeau, 9 Q. L. R. 268 (1883); Abbott v. Hendricks, 1 M. & G. 791 (1840). In an accepted bill, payable to the order of the drawer, these words imply value received by the acceptor: Highmore v. Primrose, 5 M. & S. 65 (1816). If the bill be payable to a third party they imply value received by the drawer: Grant v. Da Costa, 3 M. & S. 351 (1815). In England these words have long been unnecessary: Hatch v. Trayes, 11 A. & E. 702 (1840).

of place.

Statement (c) that it does not specify the place where it is drawn or the place where it is payable; 53 V., c. 33, s. 3 (4c). Imp. Act, ibid.

date.

The place where a bill is drawn is usually placed at the top before the date. If no place is specified the holder may treat it as an inland bill, even although drawn abroad: sec. 25 (3). In France the place must be stated on the bill: Code de Com. Art. 110; Nouguier, §§ 93-105.

If no place of payment is specified it is payable generally. It may be payable at either of two places at the option of the holder: Pollard v. Herries, 3 B. & P. 335 (1803); Beeching v. Gower, Holt N. P. 313 (1816). An acceptance may name the place of payment: sec. 38 (4). A change in the place of payment or the addition of a place of payment without the acceptor's assent is a material alteration, and may render the bill void: sec. 146 (d). In France the place of payment must be different from that where it is drawn, and there must be a possible rate of exchange between the two places: Code de Com. Art. 110; Nouguier, §§ 93-105. The tendency in France is to a relaxation of this rule.

Irregular (d) that it is antedated or postdated, or that it bears date on a Sunday or other non-juridical day. 53 V., c. 33, s. 13 (2). Imp. Act, ibid.

§ 27

post

Bills, cheques, and notes are sometimes postdated or antedated for purposes of convenience; and the fact that Antethey are negotiated prior to the day of date, is not a suspici- dated or ous circumstance against which parties must guard: Daniel. dated. § 85. The indorsee of a bill that was postdated, and indorsed by the payee who died before the day of date, was held to have derived title through the indorser and entitled to recover against the drawer: Pasmore v. North, 13 East, 517 (1811). This case has been followed in the United States: Brewster v. McCardel, 8 Wend. 479 (1832). Time is computed on such bills with reference to the actual date they bear. A postdated cheque is equivalent to a bill payable after date: Forster v. Mackreth, L. R. 2 Ex. 163 (1867); Royal Bank v. Tottenham, [1894] 2 Q. B. 715.

The above rule as to a bill dated on Sunday, is that of Dated on Sunday. the Imperial Act and also of the English law before the Act. But if a bill were given in pursuance of a contract declared by 29 Car. 2, c. 7, to be illegal, as being made on a Sunday in the course of a man's ordinary calling, it would be void as between the immediate parties, and as to any person who takes it with notice: Begbie v. Levi, 1 C. & J. 180 (1830). The fact of its being dated on Sunday would not be such notice. The above Act of Charles II. is in force in some of the provinces, and in several of the provinces similar Acts have been passed. See R. S. O. c. 246; R. S. Q. Art. 3498; R. S. N. B. Tit. 39, c. 134, s. 2; 20 Geo. III. (P. E. I.) c. 3.

In Atty.-Gen. v. Hamilton Street Ry. Co., [1903] A. C. 524, it was held that R. S. O. c. 246 treated as a whole was beyond the competency of the Ontario Legislature to enact, and fell within the scope of the criminal law which was reserved for the Dominion. In consequence of this decision the Dominion Statute, 6 Edw. VII. c. 27 (now R. S. C. c. 153) was passed making it unlawful for any person to carry on or transact any business of his ordinary calling, except works of necessity or mercy on the Lord's Day. Section 16 provides that the Act shall not affect any existing provincial law on the subject.

Any provincial Act or portion of a provincial Act, which might fairly be held to affect only property and civil

$ 27

rights or to come within any other subject assigned to the provinces would not be affected by the above decision or by Bills dated the Dominion statute.

on Sun

day.

Sum

The words" or other non-juridical day," are not in the Imperial Act, and were not in the bill, but were added in the Senate to remove possible doubts: Senate Debates, 1890, p. 463.

A note void as between the immediate parties on account of its being a Sunday transaction, would be valid in the hands of a holder in due course.

ILLUSTRATIONS.

1. A note made on Sunday in payment of goods sold on that day is void as between the original parties, but not as against an indorsee for value and without notice: Houliston v. Parsons, 9 U. C. Q. B. 681 (1852); Crombie v. Overholtzer, 11 U. C. Q. B. 55 (1853).

2. A promissory note dated on Sunday given in payment of a horse purchased on that day, is null and void: Coté v. Lemieux, 9 L. C. R. 221 (1859).

3. A promissory note made on Sunday is valid: Kearney v. Kinch, 7 L. C. J. 31 (1863).

4. An indorsee may recover against the acceptor of a bill dated on Sunday: Begbie v. Levi, 1 Cr. & J. 180 (1830).

5. A bill made and delivered on Sunday is void in most of the United States: Randolph, §§ 225, 1790.

28. The sum payable by a bill is a sum certain certain. within the meaning of this Act, although it is required to be paid,

Interest. (a) with interest; 53 V., c. 33, s. 9. ibid.

Imp. Act,

A bill must be for "a sum certain in money:" sec. 17. See notes and illustrations ante p. 51. This section gives some instances that might not be considered to comply with that requirement, hence they are so declared.

The first is that it may be "with interest." This may be "with interest" simply, or with interest at a certain rate. In the former case the rate up to maturity at least would be determined by the law of the place where the bill

With

interest.

is drawn: Story on Conflict of Laws, 8th ed., s. 305: Allen § 28 v. Kemble, 6 Moore P. C. at p. 321 (1848). In Canada where no special rate is mentioned, the law formerly fixed it at 6 per cent.; since the 7th of July, 1900, the rate has been 5 per cent.; but the parties may agree upon any higher or lower rate: R. S. C. c. 120, s. 2. Formerly there were restrictions in certain cases in most of the provinces. In Ontario and Quebec certain corporations could not take more than six, and others not more than eight per cent.: R. S. C. (1886) c. 127, s. 10. See as to Nova Scotia ss. 12 to 17; New Brunswick, ss. 18 to 23; British Columbia, ss. 24 to 27; Prince Edward Island, ss. 28 to 30. The restrictions relating to these provinces were all abolished by the Act of 1890, 53 Vict. c. 34, which repealed sections 9 to 30 inclusive of R. S. C. (1886) c. 127. Banks are subject to the following limitation: "The bank may stipulate for, take, reserve or exact any rate of interest or discount not exceeding seven per centum per annum, and may receive and take in advance any such rate, but no higher rate of interest shall be recoverable by the bank": Bank Act, R. S. C. c. 29, s. 91. Certain corporations by their charters are restricted as to the rate of interest they may take. These are not affected by the above repeal.

Lenders'

By the Money-Lenders' Act, R. S. C. c. 122, any money-Moneylender who shall stipulate for, allow, or exact on any nego- Act. tiable instrument, contract or agreement concerning a loan of less than $500, a rate of interest greater than 12 per cent. per annum, is liable to one year's imprisonment, or a penalty of $1,000. After judgment the rate is reduced to 5 per cent. By section 8 the bona fide holder before maturity of a negotiable instrument discounted by a preceding holder at more than 12 per cent. may recover the amount thereof, but the party paying may reclaim the excess from the moneylender.

In England the rate in the absence of contract is 5 per Interest. cent., but the parties may agree upon any other rate: Upton v. Ferrers, 5 Ves. 803 (1801). In the United States the rate varies. In most of the northern and north-eastern States the legal rate is 6 per cent.; in Wisconsin, Minnesota, and some other western States it is 7 per cent. In Massachusetts, Rhode Island, and Connecticut usury laws have been abol

§ 28

With interest.

Instalments.

Default.

ished; in the other northern and north-eastern States they still exist with varying degrees of severity. In New York any higher rate than 6 per cent. is only allowed in exceptional cases. In Ohio, Indiana and Illinois the maximum is 8 per cent.; in Michigan, Wisconsin, and Minnesota, 10 per cent. Where a bill drawn in one country is negotiated, accepted or payable in another, for the rule as to what rate of interest is to govern, see the notes under section 161.

Where a special rate of interest is mentioned in the bill, see the notes and cases under section 134, as to the rate which is to run after maturity.

(b) by stated instalments;

(c) by stated instalments, with a provision that upon default in payment of any instalment the whole shall become due; 53 V., c. 33, s. 9 (b and c). Imp. Act, ibid.

The instalments must be "stated," for if there be any uncertainty about them the instrument is not a bill. The instalments may be either with or without interest. As to presentment and notice of dishonor each instalment is treated as a separate bill. A valid endorsement must be of all instalments unpaid.

ILLUSTRATIONS.

1. A promise to pay £102 "in yearly proportions," held to be a valid note payable in two annual instalments: McQueen v. McQueen, 9 U. C. Q. B. 536 (1852).

2. A note was made payable in eighteen months, with interest at 7 per cent. payable half-yearly. In order to bind the indorser for any instalment of interest the note should have been presented when the instalment was payable, and notice given him of dishonor: Jennings v. Napanee Brush Co., 4 C. L. T. 595 (1884), followed in Moore v. Scott, 5 W. L. R. 8; 16 Man. 492 (1907).

3. An action lies on a note payable by instalments as soon as the first day of payment is passed, but only for the amount of the first instalment, each of them being considered as a separate debt: Clearihue v. Morris, 2 Rev. de Lég. 30 (1820).

4. A bill was payable in three equal instalments. When the first became due, it was presented at the bank where it was made payable, the cashier paid the instalment due, and returned the bill