CHAPTER Period of payment may be uncertain if inevitable. Makers or payees liable or entitled in the alternative. But it is not material that the time when the event may happen is uncertain, provided it must happen at some time or other; thus, a note payable on the death of A. B., or of the maker, is good (m). So, a note payable when a King's ship shall be paid off, has been held to be a good note, the Court of Error observing, "The paying off of the ship is a thing of a public nature" (n). But it is said (o), that the Court below assigned as a reason, that the ship would certainly be paid off one time or other (p). The contingency, in order to vitiate the note as such, must be apparent ou the face of the instrument (q). A promissory note payable with interest, twelve months after notice, is not to be considered as payable on a contingency, and is, consequently, valid (r). The happening of the contingency on which the payment of the bill is dependent will not cure the defect (s). A note beginning, "I, A. B., promise, &c." and signed A. B., or else C. D., is a good note against A. B., but only evidence as against C. D. of a conditional agreement to pay if A. B. does not (t). In this last case the maker was uncertain; the note, as such, is not available at all, if the payee be uncertain. Thus, where the maker promised to pay to A. or to B. and C. a certain sum, Abbott, C. J., said, "I have no doubt this instrument is not a promissory note within the statute of Anne for, if a note is made payable to one or other of two persons, it is payable only on the contingency of its not having been paid to the other, and is not a good promissory note within the statute" (u). So a bill exchange or promissory note payable after date to the (m) Cooke v. Colehan, 2 Stra. 1217; Roffey v. Greenwell, 2 Per. & Dav. 365; 10 A. & E. 222. (n) Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood, 1 Wils. 262. (0) And see Haussoullier v. Hartsink, 7 T. R. 733; Dixon v. Nuttall, 6 C. & P. 320; 1 C., M. & R. 307, S. C.; Goss v. Nelson, 1 Burr. 226. "I promise to pay or cause to be paid," is a good note, the alternative expression importing the same thing. Lovell v. Hill, 6 C. & P. 238. (p) Colehan v. Cooke, Willes, 399; 1 Selw. N. P. 375. A note to an infant, payable when he shall of come of age, has been held good, if it specify the particular day. Goss v. Nelson, 1 Burr. 226; 1 Lord Kenyon, 498, S. C. (g) Richards v. Richards, 2 B. & Ad. 447. (r) Clayton v. Gosling, 5 B. & C. 360; 3 D. & R. 110, S. C. (8) Chitty, 7th ed. 45; Hill v. Halford, 2 B. & P. 413; Chitty, 9th ed. 135, 144. (t) Ferris v. Bond, 4 B. & Al. 679; and see Appleby v. Biddulph, B. N. P. 272, cited Morice v. Lee, 8 Mod. 363; 4 Vin. Ab. 240, pl. 16. (u)Blanckenhagen v.. 2 B. & Ald. 417. Blundell, secretary for the time being of a company is void as a bill or note (x). CHAPTER payable out of a Upon the same principle, the bill or note must not be made Not be made payable out of a particular fund (y), for the fund may prove particular fund. insufficient. Plaintiff drew upon A., and required him to pay B. 71. per month out of plaintiff's growing subsistence. This was held no bill of exchange: for, had plaintiff died, or his subsistence been taken away, the bill would not have been payable (z). So, an order from the owner of a ship to the charterer, to pay money on account of freight, is no bill; for the future existence and amount of any debt due for freight are subject to a contingency (a). And the same rule holds if the contingency is expressed on the back of the note, by an indorsement made before the note was a perfect instrument (b). But the statement of a particular fund in a bill of exchange will not vitiate it, if introduced merely as a direction to the drawee how to reimburse himself: thus, a bill directing the drawee to pay J. S. 97. 10s., "as my quarterly half-pay," was held to be a good bill (c). If the instrument be defective as a bill or note, it still may Irregular bill or be evidence of an agreement (d). is not à and circular notes. Letters of credit and circular notes are methods of obtain- Letters of credit ing credit abroad, introduced for the convenience of travellers and agents, to obviate the trouble and risk of carrying about coin or bank notes. They are now generally used together, in which case the letter of credit is called a letter of indication. A letter of credit is an authority, or rather request, by a banker to his foreign correspondents therein named to discount bills drawn on him by the bearer. Circular notes are the unsigned drafts generally for some specific amount given with the letter and to be used or not at the bearer's discretion. The banker usually indemnifies himself against the (x) Storm v. Stirling, 3 E. & B. 832; Cowie v. Stirling, 6 E. & B. 333; Yates v. Nash, 8 C. B. (N. S.) 581; but see Holmes v. Jacques, ante, p. 74. (y) Jenny v. Herle, 2 Ld. Raym. 1361; 8 Mod. 265; 1 Stra. 591, S. C.; Haydock v. Lynch, 2 Ld. Raym. 1553; Dawkes v. Lord de Loraine, 2 W. Bla. 782; Wils. 207, S. C.; Yates v. Grove, 1 Ves. jun. 280; Carlos v. Fan court, 5 T. R. 482. (z) Josselyn v. Lacier, 10 Mod. 294; Fort. 281, S. C.; see Russell v. Powell, 14 M. & W. 418. (a) Banbury v. Lissett, 2 Stra. 1211. (b) Leeds v. Lancashire, 2 Camp. 205. (c) Macleod v. Snee, 2 Str. 762. (d) As to the proper stamp in such a case, see post. Stamess CHAPTER bills by anticipation, in which case the bearer may recover the balance of his deposit, if any, on surrendering the letter and unused notes (e). It seems that the effect of such instruments is to place the issuer under a contract binding probably at law, but certainly so in equity (f), to pay even without acceptance (g) all bills drawn in conformity with the letter of credit; and the holders are not to be prejudiced by any set-off or cross claim by the drawee against the drawer (h). Letters of credit to be used in England require a penny stamp, those to be used abroad none, though presumably the drafts when brought to England for payment or negociation fall within the 17 & 18 Vict. c. 83, s. 5 (i). (e) But if any of the notes be lost it has been held that a satisfactory indemnity must be given. Conflans Company v. Parker, L. R., 3 C. P. 1. (f) Agra and Masterman's Bank v. Asiatic Bank, 36 L. J., (g) Com. Dig. tit. Merch. F. 3. (h) Agra and Masterman's Bank, supra. (i) 16 & 17 Vict. c. 59, sched. CHAPTER VIII. OF AGREEMENTS INTENDED TO CONTROL THE A written agreement is either on the instrument itself or various sorts of on a distinct paper. Again, a written agreement on the agreements, instrument itself is either contemporaneous with the completion of the bill or note, or it is a subsequent agreement. Once more, even a contemporaneous written agreement may either be parcel of the instrument, or it may be collateral. A memorandum on a bill or note, made before it is complete, is sometimes considered as part of the instrument, so as to control its operation, and sometimes not. If the memorandum make the payment contingent, we have seen that it will be incorporated in the instrument (a). (a) Leeds v. Lancashire, 2 Camp. 205; Hartley v. Wilkinson, 4 M. & S. 25; 4 Camp. 127, S. C. Though by way of indorsement; Leeds v. Lancashire, ubi supra. A joint and several promissory note had an indorsement in this form: "The within note is given for securing floating advances from the Lincoln and Lindsay Banking Company, to the withinnamed Thomas Smith, sen. (one of the joint and several makers of the note), with lawful interest for the same from the respective times when such advances have B. been or may be made, together TION. H Effect of contemporaneous agree ment written ou the instrument. CHAPTER VIII. Effect of an Effect of agree- Agreement con collateral. But, where it is merely directory, as if it point out the place A memorandum made after the note is perfected and delivered is an independent agreement, requiring an agreement stamp. "If," says Lord Ellenborough, "the memorandum was subsequently written, when the note had been perfected and delivered in its absolute state, it could not be considered as a part of that instrument, though it chanced to be inscribed upon the same piece of paper. In that case it was an agreement by way of defeasance, and it lay upon the defendant to produce it with a proper stamp" (g). A written agreement, on a distinct paper, to renew, or in other respects to qualify the liability of the maker or acceptor, is good as between the original parties (h). Thus, if the drawer agree to indemnify the acceptor against a claim by other parties, for a portion of the sum for which the bill is drawn, and the acceptor afterwards pays those other parties a sum to which the indemnity applies, the acceptor's liability, as between himself and the drawer, will be reduced pro tanto, and he will not be turned round to his cross action on the indemnity (i). But a written agreement, though contemporaneous, will temporaneous but not restrain the operation of the bill or note if it be collateral e. g., if other persons besides the parties to the bill or note be parties to it (k). 7e prom: note accomp Mortge (b) Exon v. Russell, 4 M. & S. 505. (c) Stone v. Metcalfe, 4 Camp. 217; 1 Stark. 53, S. C. (d) Wise v. Charlton, 4 A. & E. 786; 6 Nev. & M. 364; 2 Har. & W. 49, S. C.; Fancourt v. Thorne, 9 Q. B. 312. (e) Brill v. Crick, 1 M. & W. 232. (f) Fitch v. Jones, 5 E. & B. 238. And see Fanshawe v. Peet, (g) Stone v. Metcalfe, 4 Camp. (h) Bowerbank v. Monteiro, 4 Taunt. 844.stor c : (i) Carr v. Stephens, 9 B. & C. 758; 4 M. & R. 591, S. C. (k) Webb v. Spicer, 19 L. J., Q. B. 34; 13 Q. B. 894, S. C.; on M error in Exchequer Chamber. |