MATTER. by a separate relative letter, made conditional on the result of a law plea then in dependence; but the Court sustained the bill, which in itself had no conditional or suspensive words. A bill or note, however, is not EXTRANEOUS annulled though it contains statements or explanations which are extraneous to its proper nature, provided these do not limit or qualify the obligation contained in it; for example, a bill which, after ordering payment of the sum, contained these words, and this, with my receipt, 'shall be a sufficient discharge of all I can ask or claim of you, preceding 'this date,' was sustained, as the bill merely expressed the cause of granting, and could not be vitiated by specifying what would equally follow, though not stated. Even such extraneous matter as this, however, although harmless, should be carefully excluded from a bill or note. A clause of interest does not invalidate a bill or note. The leading case on this point is that of Sword. It has been decided, likewise, that a bill is good, though it bear a clause, with penalty conform to law, because, by law, there is no penalty due,' and the clause does no harm. Such a clause, however, should of course be excluded. 3 PAYMENT. The term of payment is usually expressed at the commencement of the TERM OF bill or note; as, for example, 'three months after date,' or 'ninety days after sight,' etc., 'pay to me,' or 'I promise to pay.' It ought to be expressed in words, not in figures. The term of payment, as I formerly noticed, may be, in the case of a bill, on demand, or at sight, or on a particular day, or within a certain period after sight, or after date; and in the case of a promissory-note, on demand, or on a day certain, or within a certain period after date, according to the arrangement of parties; and foreign bills are sometimes drawn payable at or with reference to the period of usance. When a time is inserted, it must be absolutely clear of condition or uncertainty. According to the earlier rules adopted in Scotland, bills made payable at very distant dates were not allowed the privileges of such instruments, but the law is now different. It is said by Byles, that 'if 'a bill of exchange be made payable at never so distant a day, if 'it be a day that must come, it is no objection to the bill;' and Lord Ivory, in his notes to Erskine,5 quotes that dictum as containing the true principle. The total sum in a bill or note may be made payable by instalments. Bills and notes in that form are frequently met with, especially in connexion with composition-contracts in sequestrations. 6 And the Court have expressed an opinion that a note for payment of £50, in sixteen different instalments of three guineas a month, was a good ground of summary diligence. The point was not decided, the charge being turned into a libel,—that is, the charge was dealt with as the summons in an ordinary action, but there can 1 Trotter, 21st Feb. 1738, M. 1402. 2 Sword, 23d June 1790, M. 1433, and note, p. 1435, correcting the report. 3 M'Neil, 24th Jan. 1741, M. 1422; M'Lauchlan, 2d Jan. 1760, M. 1432. 4 Byles on Bills, p. 56. 5 Erskine, iii. 2. 38. 6 Carron Co., 25th February 1796, M. 1457. PAYEE. 'OR ORDER.' be no doubt that such bills and notes are good grounds of summary diligence, though, of course, only for the instalments past due at the time. The total amount to be paid, or the total number of the instalments, and amount of each, must, however, be expressed, and clear of all doubt. A bill or note may be made payable to the bearer, in which case it is available to any one who lawfully obtains possession of it, just as an ordinary bank-note. Notes in such terms are practically objectionable, as involving risk through their being lost or stolen; but they have been long considered good and legal documents, and not struck at by the Act 1696, cap. 25, directed against writs issued blank in the person's name in whose favour they are conceived.' When a bill is ot payable to the bearer, the payee must be distinctly pointed out in the bill, and there must be no contingency or uncertainty as to who is truly payee. A bill will be vitiated if made payable with a substitution of payees, that is, to one party, or order, whom failing to another; the substitution importing a condition as to the payee, which makes a bill null.' It has also been decided in England, that the obligation in a promissory-note cannot be granted alternatively to one or other of two individuals named; as that imports a condition affecting each of them, that the bill has not been paid to the other, creating a conditional obligation, and uncertainty and contingency as to the payee. It is not necessary that the payee should be the beneficiary. A bill or note may be made payable to A., for behoof of, or as agent for, B.3 There is here no condition or uncertainty. In England, where action only, and not summary diligence, can proceed on a bill, a promissory-note to the trustees acting under A.'s will, without naming any of them, has been sustained. But in Scotland, when trustees are the payees, they should be named, or it would be unsafe to raise summary diligence; because the bill does not in itself show who are the payees. Extrinsic evidence is required for instructing who are the trustees and payees. This view is fully supported by the case of Fraser,* where a bill, indorsed to 'the agent for' a bank, at a particular place, or order,' without naming the agent, was found not to warrant summary diligence at the instance of the agent. The bill did not of itself show who was the indorsee and holder. As already observed, however, a bill or note may be issued blank in the payee's name; in which case the holder's name may be filled up as payee, and he will be held as in the same position with a first indorsee.5 Bills and promissory-notes are usually granted to the payee, 'or order,' that is to the payee, or any one to whom, by indorsing the bill, he shall order the acceptor to pay; indorsation containing or implying an order to pay to the indorsee. In Scotland, it was long ago settled that these words were not required to give the payee the privilege of indors 1 Inglis, 27th July 1739, M. 1404. 2 Thomson, p. 79. 3 Wixon, 22d June 1849, 11 D. 1188. 4 Fraser, 21st June 1853, 15 D. 756. 5 Thomson, Still, & Co., 6th June 1805; Hume, 53. 6 Crichton, Jan. 1726, M. 1446. ing. It was held that there could be no more necessity to make a bill payable expressly to 'order,' than to make a bond payable expressly to 'assignees.' This rule has never been since controverted. But in England it has been held, that when a bill or note is without these words, though it is good in the hands of the original payee, it does not give the indorsee a good claim against any of the parties to the instrument, except his own immediate indorser. A bill or note, payable not to A., or order, but to the order of A., has been held to give the party named a good right to sue upon it, as well as to indorse it.1 MAKING BILL The maker of a bill or note ought to write on it the name of the PLACE OF place where it is made, and, likewise, if he himself is not well known, OR NOTE. his own particular residence, that the holder may readily find him out when necessary; and it is the usual and regular course in Scotland to superscribe the name of the place where a bill or note is made, though this is not indispensable. Care should be taken to see that a place is inserted in such a case as that suggested by Professor Menzies, viz., of a bill bearing the words, Pay to me here;' and likewise, in the case of foreign bills payable at usance,—in which last case the day of payment cannot be ascertained without knowing the place drawn from. The place of making is required in England in bills and notes for sums under £5; but that is, by special Act of Parliament,2 not applicable to Scotland. In usual and correct practice, the date of drawing a bill, or of making a DATE. note, is marked in figures at the top of the instrument, and on the righthand side; but, except to render the bill or note a warrant for summary diligence, it is not indispensable that it should be issued with a date, unless the term of payment depends on the date. Where the bill or note is payable on demand, or at sight, or on a specified day, or so many days after sight, it is a complete instrument in itself, without the date of drawing, except for summary diligence. But where the term of payment depends on the date, as, for example, when the bill or note is payable three months after date, the date is an essential. Bills and promissory-notes bearing dates prove their own date. It was well argued in Kennedy's case, that if bills do not prove the dates they bear, they can prove nothing at all. It is now competent, however, in all cases of bills or notes issued without date, to prove, by parole evidence, the true date at which they were issued. But, under the Mercantile Law Amendment Act, summary diligence is not competent on any bill or note issued without a date. This provision, you will observe, is absolute. It is applicable to all cases, not merely to those in which the term of payment depends on the date. If the bill or note bears no date, there can be no summary diligence upon it. The date is important also in Scotch bills with reference to the question of deathbed, likewise when bills are granted by women before their marriage, or by parties who allege minority as a defence against liability. 1 Thomson, p. 86. 2 17 Geo. III. c. 30. 3 Kennedy, 8th July 1725, M. 1477. 5 4 Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, s. 10. 5 Ibid. SUNDAY. PLACE OF FOR VALUE It was held, in the case of Elliot and Son,1 not to be an objection to a bill, payable to the drawer, that it was drawn on Sunday. The bill in that case was drawn and dated in London, and accepted in Edinburgh, and, as the obligation was not constituted till acceptance, the time of the acceptance was the date to look to in connexion with the question whether the obligation was lawfully constituted. The acceptance, however, is not presumed to have been made on Sunday, merely because the bill bore date on that day, but according to the usage of merchants the contrary must be presumed. Whether an acceptance dated on Sunday would be valid, has not been conclusively decided. Mr. Thomson3 mentions the case of M'Pherson and Company (which occurred in 1824, but is not reported), where the acceptors pleaded that they had accepted a bill on Sunday, as an objection to the validity of the bill, in a question with an onerous indorsee. The objection was repelled by the Lord Ordinary Mackenzie, whose judgment was acquiesced in. Professor Menzies holds the question of the legality of the acceptance of a bill upon Sunday as open, and says, It will be for the consideration of the Court, when the point shall ' arise, whether the same effect is to be given to the Scotch Statute, 1579, 'cap. 70, against all "handy-labouring or working" on the Sabbath, as, ' in the opinion of Broom (Legal Maxims, p. 21), would be given in Eng'land to the English Act, 29 Charles II. cap. 7, against doing or exercis'ing any worldly labour, business, or work of their ordinary calling, on Sabbath.' 'In the meantime,' adds Professor Menzies, the matter is 'so doubtful, that a prudent agent, upon legal grounds merely (apart 'from reasons of a different and higher kind), will esteem it his duty, so 'far as his advice may prevail, to prevent its occurrence.' I may here call your attention to sect. 12 of the Stamp Act, 1815,5 which provides against making or issuing a bill or note post-dated, so as to bring its apparent date within two months of the date of payment; that being a period with reference to which a lower scale of stampduties becomes applicable. It is not absolutely necessary to specify the place of payment in a bill or note, but it is very desirable that such place should be pointed out, both for enabling the debtor to make his arrangements for payment, and to obviate any difficulty as to the negotiation, or, it may be, the protest of the bill or note, in case of doubt as to the proper place at which to apply for payment. We shall have occasion to notice this point further when considering the subject of presentment for payment at maturity. But when a bill is made payable in London, or any large town, the holder may insist that the drawee shall subjoin to his acceptance some particular house where it will be paid, as the holder may not otherwise know where to find the drawee. If the drawee refuse to subjoin such house, the holder may protest for non-acceptance. Bills or notes frequently bear to be granted for value received; ' 1 Elliot & Son, 20th Jan. 1844, 6 D. 411. 2 Thomson, p. 66. 3 Ibid. 5 55 Geo. III. e. 184. 6 Thomson, p. 342. but it has long been settled that these words are not necessary, either in granting or indorsing them, in order to give the instruments their full ordinary effects. In practice, it is not usual to insert the words in question in indorsations. The presumption is, that a bill or note is granted or indorsed for value instantly received, whether that is expressed or not; and the contrary can be proved only by the holder's writ or oath.2 If the particular kind of value is specified in the bill, no evidence but the holder's writ or oath can be received to contradict the statement. In Wallace's case, a bill was sustained in favour of the drawer, against the acceptor's heir, although the specification of the nature of the value was admitted to be false. The Court said :-This circumstance ' will not annul a bill, provided value of any sort is either actually re'ceived, or in law presumed to have been received.' СНАРТER II. HAVING considered the form of the bill, I have now to call your Acceptance. attention to the transaction of the Acceptance. When there are only two 4 parties, the drawer (who is also payee) and the acceptor, the former sends the bill to the latter, and on his signing his name as acceptor, and returning the bill to the drawer and payee, the transaction is completed. When the payee is not the drawer, but a third party, the unaccepted bill is usually sent to the payee, that he may present it to the drawee for acceptance, which he ought to do without any undue delay. This is a matter of prudence in all cases, because, upon acceptance, the drawee will be personally bound, which previously he is not; and, in case of non-acceptance, the payee will have immediate recourse against the drawer for payment, though the bill has not reached maturity. When the bill is payable at a certain period after sight, presentment for acceptance is necessary, in order to fix the term of payment. What is undue delay, will depend on the circumstances of the case; but unless there is cause for delay, over which the party has no control,-his illness, for example, very little latitude is allowable. In the early cases of Innes 5 and Andrew, bills at fourteen days' sight, and twenty-one days' sight, were not presented by the holders for acceptance, for ten days and three or four weeks respectively after it was possible to have presented them; and loss arose by the drawees' absconding and bankruptcy. In these cases, the Court held that there had been due negotiation. But the 1 Scot, 19th March 1707, M. 1535; Macdowal, June 1731, M. 1541; Forbes on Bills, p. 49, and cases there cited. The same was held with regard to indorsation in Auchinleck, 15th February 1715, M. 1537. 2 Wallaces, 29th Nov. 1793, M. 1484; 6 Andrew, 21st Nov. 1759, M. 1584. |