to the holder with the following indorsement: "Paid on the within $741, Aug. 12. '61." Held, to be an acceptance for the remaining instalments: Berton v. Central Bank, 10 N. B. (5 All.) 493 (1863).

5. A promise to pay £50 by instalments, all payments to cease on the death of W., is not a note: Worley v. Harrison, 3 A. & E. 669 (1835).

6. A promise to pay £6 "by instalments" simply, is not a note: Moffat v. Edwards, Car. & M. 16 (1841).

7. A note payable by instalments, with a proviso that if default is made on the first instalment the whole shall become due, is a valid note, and on default an indorser is liable for the whole amount: Carlon v. Kenealy, 12 M. & W. 139 (1843).

8. A non-negotiable note, payable in instalments, but on default the whole to become due, is valid, and the maker has three days' grace: Miller v. Biddle, 11 Jur. N. S. 980; 13 L. T. N. S. 334 (1865).

9. A promise "to pay £250 on demand together with any interest that may accrue thereon," is not a promissory note, as the rate of interest and the time for which it is to run are both uncertain: Lamberton v. Aiken, 2 Rettie (5th series) 189 (1899).

10. A note payable "in such instalments, and at such times as the directors of a company may from time to time require," held to be a valid note, as being payable on demand, or in instalments on demand: White v. Smith, 77 Ill. 35 (1875).

§ 28

(d) according to an indicated rate of exchange or Exchange. according to a rate of exchange to be ascertained as directed by the bill. 55 V., c. 33, s. 9 (d). Imp. Act, ibid.

Where the bill is to be paid in one country and the sum is expressed in the currency of another, the amount is determined according to the rate of exchange on the day the bill is payable: Hirschfield v. Smith, L. R. 1 C. P. p. 340 (1866); sec. 163. On a sterling bill drawn in London on defendant in Toronto, but accepted by him in London and payable there, plaintiff was held entitled to be paid at the current rate of exchange: Greatorex v. Score, 6 U. C. L. J. 212 (1860). It was formerly held in Ontario that a promise to pay a certain sum "with exchange on New York," or "with the current rate of exchange on New York," or "with exchange not to exceed one-half per cent.," was not valid as not being for a sum certain: Palmer v. Fahnestock,

exchange.

§ 28 9 U. C. C. P. 172 (1859); Fahnestock v. Palmer, 20 U. C. Q. B. 307 (1860); Grant v. Young, 23 ibid. 387 (1864); Wood With v. Young, 14 U. C. C. P. 250 (1864); Saxton v. Stevenson, 23 ibid. 503 (1874). It was also held in New Brunswick that a promise to pay £42 3s. 9d. with current rate of exchange on Boston was not a promissory note: Nash v. Gibbon, 9 N. B. (4 Allen) 479 (1860). It was also held in a number of cases in Ontario that notes payable in current funds of the United States were not valid, but these cases were expressly overruled in Third National Bank of Chicago v. Cosby, 43 U. C. Q. B. 58 (1878).

Figures

and words.

With

2. Where the sum payable is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the amount payable. 53 V., c. 33, s. 9 (2). Imp. Act, ibid.

Usually the amount is stated in words in the body of the bill, and in figures in the margin. In some countries the law requires the amount to be stated in words, while in others both are required: Randolph, § 105. The figures in the margin form no part of the bill or note: Garrard v. Lewis, 10 Q. B. D. 30 (1882). When the words are not distinct, or the word " dollars" or "pounds" is omitted, the figures in the margin may be looked at to explain them: Rex v. Elliott, 1 Leach C. C. 175 (1777); Phipps v. Tanner, 5 C. & P. 488 (1833); Beardsley v. Hill, 61 Ill. 354 (1871).

The rule in this sub-section is so binding that when the figures in the margin differ from the amount in words evidence is inadmissible to show that the amount in figures is the correct one: Saunderson v. Piper, 5 Bing. N. C. 425 (1839).

3. Where a bill is expressed to be payable with interest. interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof. 33, s. 9 (3). Imp. Act, ibid.

53 V., c.

The first part of this sub-section follows the old law. On a note payable on demand with interest, the interest runs

interest.

from the date of the note: Baxter v. Robinson, 2 Rev. de Lég. § 28 439 (1816); Dechantal v. Pominville, 6 L. C. J. 88 (1860); Crouse v. Park, 3 U. C. Q. B. 458 (1847); Howland v. With Jennings, 11 U. C. C. P. 272 (1861). Where a note was made payable twelve months after date, with six months' interest, the interest began to run six months after the date of the note: Heaviside v. Munn, 2 Rev. de Lég. 439 (1817). The agreement between the parties fixes the rate, no matter how exorbitant it may be: Young v. Fluke, 15 U. C. C. P. 360 (1865).

As to what rate of interest should be allowed after maturity,, see notes to section 134 (b).

An undated bill is issued when first delivered, complete in form, to a person who takes it as a holder: sec. 2 (i). A bill is complete in this sense without being dated: sec. 27 (a). If a wrong date is inserted and the bill comes into the hands of a holder in due course, he can collect interest from the date inserted, even if it be previous to the true date of issue: secs. 30 and 32.

tion.

29. Where a bill or an acceptance, or any en- True date dorsement on a bill, is dated, the date shall, unless presumpthe contrary is proved, be deemed to be the true date of the drawing, acceptance or endorsement, as the case may be. 53 V., c. 33, s. 13. Act, ibid.

Imp.

"It may be laid down as a general prima facie presump- Date. tion that all documents were made on the day they bear date": 1 Taylor on Evidence, § 169. This has been specially recognized with reference to bills and notes: Hays v. David, 3 L. C. R. 112 (1852); Evans v. Cross, 15 L. C. R. 86 (1865); Hutchins v. Cohen, 14 L. C. J. 85 (1869); Smith v. Battens, 1 M. & Rob. 341 (1834); Anderson v. Weston, 6 Bing. N. C. 296 (1840); Roberts v. Bethell, 12 C. B. 778 (1852).

Parol evidence is admissible to show that the date on the bill is not the true date and to show the true date: Pasmore v. North, 13 East 517 (1811); Montague v. Perkins, 17 Jur. 557 (1853); Macdonald v. Whitfield, 8 App. Cas. 733 (1883); Bayley v. Taber, 5 Mass. 286 (1809); Drake v. Rogers, 32 Me. 524 (1851); Germania Bank v. Distler, 4

$29

Date of bill.

Undated

date.

Hun 633 (1875); Biggs v. Piper, 86 Tenn. 589 (1888); Higgins v. Ridgway, 153 N. Y. 130 (1898); Witherow v. Slayback, 158 N. Y. 699 (1899).

If an indorsement is not dated, the true date of the indorsement and delivery may be proved: Inkiel v. Laforest, Q. R. 7 Q. B. 456 (1897).

If a bill be dated on an impossible date, such as the 31st of September, the law adopts the nearest day by the doctrine of cy pres; and the computation will be from the 30th of September: Wagner v. Kenner, 2 Robinson (La.) 120 (1842).

30. Where a bill expressed to be payable at a able after fixed period after date is issued undated, or where the acceptance of a bill payable at sight or at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the bill shall be payable accordingly: Provided that,

Inserting wrong date.

Liability

of holder.

(a) where the holder in good faith and by mistake inserts a wrong date; and,

(b) in every other case where a wrong date is inserted;

if the bill subsequently comes into the hands of a holder in due course the bill shall not be voided thereby, but shall operate and be payable as if the date so inserted had been the true date. 53 V., c. 33, s. 12; 54-55 V., c. 17, s. 2. Imp. Act, s. 12.

In the Act as passed in 1890 the third line read, "payable at a fixed period after sight," thus following the Imperial Act. It was another case of an omission to harmonize the rest of the Act with the change made in section 10 by the exclusion of sight bills from those payable on demand. Sight bills thus requiring acceptance a rule became necessary for an undated acceptance. The words "at sight or" were therefore inserted after "payable" by section 2 of the Act of 1891.

A bill of exchange without a date is valid: De la Courtier v. Bellamy, 2 Show. 422 (1685); Hague v. French, 3 B. & P. 173 (1802); Pasmore v. North, 13 East 521 (1811); Giles

date.

v. Bourne, 6 M. & S. 73 (1817); Cowing v. Altman, 71 N. Y. § 30 441 (1877). A date is not included among the conditions in section 17; but it is a material part of a bill or note and Inserting should not be altered: sec. 146 (a). A bill is issued when it is first delivered complete in form, to a person who takes it as holder: sec. 2 (i). It is only when payable at a fixed period after date, or at sight, or at a fixed period after sight, that the date of the bill or of the acceptance becomes of importance. When a bill is issued without a date the holder may fill up the date: sec. 31. Where an acceptance is not dated, the bill is presumed to have been accepted a few days after its date: Roberts v. Bethell, 12 C. B. 778 (1852). In France if a bill be payable after sight, and the acceptance be not dated, time runs from the date of the bill: Code de Commerce, Art. 122.

The section probably goes farther than the old law. It has been held that parol evidence was admissible to show from what time an undated instrument was intended to operate: Davis v. Jones, 17 C. B. 625 (1856); Richardson v. Ellett, 10 Tex. 190 (1853); Cowing v. Altman, 71 N. Y. 435 (1877); and that when a note without date was made for another's accommodation, the maker authorized him to fill up the date as he saw fit: Androscoggin Bank v. Kimball, 10 Cush. 373 (1852). And where the maker in June, 1875, sent an accommodation note dated "6th, 1875," not naming a month and the 6th of June was a Sunday, and the receiver made the date "June 8th," the note was held not to be voided: Merchants Bank v. Stirling, 13 N. S. (1 R. & G.) 439 (1880).

This presumption of authorization is now extended as regards the kind of bills named to any payee or endorsee who has the bill in possession, and to the bearer. As to filling up omissions in incomplete bills generally, see sec. 31.

In France, under the Code de Commerce, Art. 110, a bill must be dated. Under the old French law, according to Pothier, Contrat de Change, No. 36, "omission of the date, or error in the date, cannot be raised by the drawer or the acceptor."

31. Where a simple signature on a blank paper Perfecting is delivered by the signer in order that it may be bill.

M'L.B.E.A.-7