CHAPTER II.

OF THE VARIOUS PARTS OF BILLS AND NOTES, INCLUDING STAMPS AND ALTERATIONS.

Order for payment of money out of a particular fund.
Bankers' drafts.

Consequences of want of stamp.

Different denomination.

Re-issuing bills.

Alteration.

After negotiation avoids a bill, though made with

consent.

With consent of parties before negotiation does not avoid the bill.

What is an issuing of a bill or note.

What alteration is material.

Correction of mistake.

Drawer's name.] The name of the drawer of the bill or of the maker of the note written by himself, or some agent authorised by him, (see post, Chap. III.) must appear on the instrument, but it need not be subscribed, for it is sufficient if his

name appears in any part of it. "I, J.S. promise to pay," is as good as "I promise to pay," subscribed J. S. Taylor v. Dobbins, 1 Str. 399. Saunderson v. Jackson, 2 B. & P. 239. An allegation that the plaintiff made his bill of exchange, in writing, directed to A. B. and by the said bill requested, &c. implies that the plaintiff's name is written in the bill, else he could not request. Ereskine v. Murray, 2 Ld. Raym. 1542. Elliot v. Cowper, 1 Str. 609. 2 Ld. Raym. 1376. S. C. An agent, in drawing a bill for his principal, should either write the name of his principal only, or as is more usually done, should sign by procuration, "A. B. per procuration C. D." for should his own name only appear, he would be personally liable. See post, Chap. III. The manner in which one partner may draw a bill so as to bind his co-partners will be hereafter stated. See post, Chap. III.

Drawee's name.] The name of the drawee should appear on the face of the bill; but where a bill was not directed to any particular person, but, instead of such direction, were the words,

payable at No. 1. Wilmot Street," and A. B. who resided at that place, accepted the bill, it was held to be properly described as a bill of exchange; and that A. B. having by his acceptance, acknowledged that he was the person to whom it was directed, was liable as acceptor. Gray v. Milner, 8 Taunt. 739. 3 B. Moore, 90. S. C. see Marius in Malyne, 34. But such a bill should not be described in the declaration as directed to A. B. Gray v. Milner, 2 Stark. 336, the first trial; sed quære. Where a bill was directed to A. or in his absence to B., and began thus, "Gentlemen, pray pay," &c. and A. accepted it, and the declaration stated it a as bill directed to A., without noticing B., Holt, C. J. held it well. Anon. 12 Mod. 447. Bayley, 309. A bill drawn upon one man cannot be accepted by two, and therefore the names of all the persons intended to be charged as acceptors ought to be inserted in the bill. Jackson v. Hudson, 2 Campb. 448. The word "at" inserted before the name of the drawee will not alter the operation of the instrument so as to prevent it being considered a bill of exchange. Ante, p. 19.

Payee's name. e.] A bill or note may be made payable to order, to bearer, or to some specified person. See R. v. Randall, Russ. & R. C. C. R. 195. R. v. Richards, Id. 193. Where the name of the payee is not mentioned, it is said by Pothier, that if the drawer has declared from whom he has received the value, it is but reasonable to construe the instrument to be payable to that person. Pothier, pl. 31. and see Green v. Davies, 4 B. & C. 235, ante, p. 17. In a bill or note so issued a bona fide holder may insert his own name as payee. Thus, in an action against the drawer of a bill, where it appeared that it had been drawn in Jamaica, upon H. M. in London; a blank being left for

name of the payee, and that it had been negotiated in this country by one V., who indorsed it to the plaintiff, who in serted his own name as payee, it was held that the plaintiff was entitled to recover, for, the defendant, by leaving the blank, undertook to be answerable for it when filled up in the shape of a bill. Le Blanc, J. added, that it was the same thing, as if the defendant had made the bill payable to bearer, and Bayley, J. that the issuing of the bill in blank, was an authority to a bona fide holder to insert the name. Crutchley v. Clarance, 2 M. & S. 90. So where, in another action on the same bill against the acceptor, the defendant objected that the blank was filled up without the drawer's authority, and the latter swore that it was so, but it appeared that he had passed the bill to V, who passed it to the plaintiff, and that the defendant under the eye of the drawer, and with the plaintiff's name standing in it, had accepted the bill, it was held that there was proof of the consent of the drawer, and the plaintiff recovered. Crutchley v. Mann, 5 Taunt. 529.1 Marsh. 29. S. C. So where a bill had been issued with a blank for the payee's name, and A. B. to whom it was bona fide negotiated, inserted his own and indorsed it, Best, C. J. ruled that it might be declared on as made payable to A. B. and that no new stamp was necessary. Attwood v. Griffin, Ry. & Moo. 425. It seems that until the blank is filled up, the instrument is not properly a bill or note. R. v. Randall, Bayley, 31. Russ. & Ry. C. C. R. 195. S. C. Unless perhaps where it can be considered in legal operation as payable to the order of the drawer. Bayley, 31.

A note payable to J. S. omitting the words, "or order," or bearer," is a good promissory note within the statute 9 Ann. though not negotiable. Smith v. Kendall, 6 T. R. 123. R. v. Box, 6 Taunt. 325. A bill or note payable to J. S. or bearer is payable to the bearer, and negotiable by delivery, and in the latter case J. S. is a mere cypher. Bayley, 25. So a note payable, "to ship Fortune or bearer," is negotiable. Grant Vaughan, 3 Burr. 1516.

บ.

Where there is a mistake in the name of the payee, evidence may be given to show who was the party intended.

Willis v.

Barrett, 2 Stark. 29. And if a person of the same name as the payee indorse a bill, the acceptor may prove that fact in his defence. Mead v. Young, 4 T. R. 28. diss. Ld. Kenyon. Where a note was made payable to H. S. and it appeared that there were two persons of that name, father and son: Bayley, J. ruled that the note was evidence of a promise to the father, but it appearing that the son had given directions to bring the action, and was in possession of the note, he thought this sufficient to maintain the declaration, which stated the note to have been made payable to the son. Sweeting v. Fowler, 1 Stark. 106.

Where a bill or note is made payable to A. to the use of B., A.

has the right to sue upon and transfer the bill. Evans v. Cramlington, Carth. 5. 2 Vent. 307. S. C. 1 B. & P. 101. (n). but see Sigourney v. Lloyd, 8 B. & C. 631. When a married woman is payee the interest vests in her husband. See post, Chap. III.

Where a bill or note is made payable to the order of a fictitious person, and is issued with an indorsement purporting to be by that person, the holder of the bill may treat it as against the drawer, acceptor, or maker (cognizant of the fact of the indorsement being fictitious), as a bill or note payable to bearer, or may recover on a special count stating the circumstances. In Vere v. Lewis, 3 T. R. 182, three of the judges were of opinion that the plaintiff might declare on such a bill, against the acceptor, as payable to bearer. In Minet v. Gibson, 3 T. R. 481, the declaration on a similar bill contained several counts stating the special circumstances, and also treating the bill as payable to the order of the drawer, and payable to bearer, and the court of B. K. held that the plaintiff was entitled to recover. This case was subsequently carried to the House of Lords, 1 H. Bl. 569., when (two of the judges and the Lord Chancellor diss.) the judgment of the King's Bench was affirmed, and according to the opinion of some of the judges the bill might have been treated as drawn payable to the drawer's own order. In Collis v. Emet, 1 H. Bl. 312, which was decided after Minet v. Gibson, in K. B., but before the affirmance of that case in the House of Lords, the Court of Common Pleas held that the holder might recover upon such a bill against the drawer, as upon a bill payable to bearer, and Lord Loughborough stated that the count setting out the whole transaction would, had the facts been correctly stated, have been sufficient. In order that the bill may operate against the acceptor as a bill payable to bearer, it must be shewn that the circumstance that the payee was a fictitious person was known to him. Bennett v. Farnell, 1 Campb. 130. 180. c. To prove either that the acceptor at the time of his acceptance knew the name of the payee to be fictitious, or that he had given an authority to the drawer to draw the bill in question, by having given a general authority to the drawer to draw bills on him payable to fictitious persons, evidence is admissible of irregular and suspicious transactions and circumstances, relating to other bills drawn by the drawer on the acceptor, payable to fictitious persons, and accepted by the acceptor, though none of those transactions or circumstances have any apparent relation to the bill in question, and though none of them proved that the acceptor accepted any of those other bills with a knowledge that the payees mentioned in them were fictitious. Gibson v. Hunter, 2 H. Bl. 288.

Date.] In general a bill or note is dated on the day on which it is issued, but where no date is stated the date will be com

puted from the day of the drawing. De la Courtier v. Bellamy, 2 Show. 422. Hague v. French, 3 B. & P. 173. Giles v. Bourne, 6 M. & S. 73. 2 Chitty, 300. S. C. The date of a bill or note is not, as between third parties, even primâ facie evidence to shew that it had existence at that time. Anon. 2 Stark. Ev. 161. overruling Taylor v. Kinlock, 1 Stark. 175. see 2 Stark. 594. Nor will the date of a bill or note in such case afford any evidence of the time of indorsement. Rose v. Rowcroft, 4 Campb. 245. Cowie v. Hurris, 1 M. & M. 141.

A bill may be post-dated, provided that with reference to the time which it has to run it be duly stamped. Pusmore v. North, 13 East, 517. Bills and notes under 51. must bear date before or at the time of the drawing or issuing thereof, and not at any day subsequent thereto. 17 G. 3. c. 30. s. 1. ante, p. 5.

It is not lawful for any banker or other person to issue any promissory note for the payment of money to the bearer on demand, liable to any of the duties imposed by 55 G. 3. c. 184. with the date printed thereon, under a penalty of 501. 55 G. 3. c. 184. s. 18.

A mere mistake in the date of a bill may be corrected without a new stamp. Thus where a bill was delivered to an agent of the drawer and acceptor to be given to the indorsee, and he, discovering that the date was 1822 instead of 1823, altered the 2 to 3, Abbott, C. J. left it to the jury to say whether the bill was not dated by mistake, and if so, he ruled that the alteration did not vacate the bill. Brutt v. Picard, R. & M. 38. and see post, p. 40.

Sum payable.] In general the sum payable is both superscribed, and mentioned in the body of the bill or note; if the the sum is imperfectly stated in the body, but correctly in the margin, the body will be taken to refer to the margin. Elliot's case, 2 East, P. C. 951.

If the sum in the superscription of the bill is different from that in the body, the latter will be taken prima facie to be the sum payable, Beawes, pl. 193. Mur. 138, 9. 2d Ed.

Bills and notes under 20 shillings are prohibited by statute 48 G. 3. c. 88. ante, p. 4, and under 51. are regulated by stat. 17 G 3. c. 30. ante, p. 5. 7 Geo. 4. c. 6. ante, p. 6.

Time and place of payment.] It is not necessary that any specific time of payment should be mentioned in a bill or note, though, as before stated, the time of payment must not be made contingent; ante, p. 13. If no time is mentioned in the bill or note, it is payable in law on demand. Whitlock v. Underwood, 2 B. & C. 157. If a bill of exchange be made

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