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thorized agent or officer of an incorporated company draws, in behalf of the company, upon the treasurer, cashier, or other officer of the company who has the custody of, and is charged with the duty of disbursing, the company's funds, this is in substance, it should seem, a draft by the company upon itself; and may be treated either as a bill of exchange or a promissory note. (a) And it may be laid down as a general rule, that whenever it is doubtful, upon the face of an instrument, whether it was intended as a bill of exchange or a promissory note, and it possesses the requisites of each, it may be treated as either, at the option of the holder. Thus, if an instrument begin, "I promise to pay," &c., like a promissory note, and be directed like a bill of exchange, it may be treated as either. (b)

the only alternative is, that this instrument is a promissory note, and is properly declared upon as such." Erskine, J.: "The instrument is a draft by the company upon that branch of it which is carried on in London. It is, in effect, nothing but a promissory note." Maule, J.: "This is a bill drawn by the whole company, acting by their directors, upon the whole company. It is a promise made by one partner, acting on behalf of the company, under the order of the directors, that the company shall pay. It is a promise made by the company at Dorking to pay in London. It is, therefore, in effect, a promissory note."

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(a) In Allen v. Sea, Fire, & Life Ass. Co., 9 C. B. 574, the instrument was in this form : “Sea, Fire, Life Assurance Company. To the cashier. Thirty days after date credit Mrs. A. or order with the sum of £ 311, 9s. 6d., claims per ‘Susan King,' in cash, on account of this corporation ”; — and was signed by two of the directors of the company. Held, to be a promissory note. Wilde, C. J. said: "What is necessary to constitute a promissory note? These parties issue this instrument, importing that the company promise to pay. The note is addressed by the drawers to their own clerk. My brother Shee treats the cashier as a drawer [drawee?]. But at the trial it was insisted, for the plaintiff, that the instrument was precisely what we think it is. The company indicate that they mean to pay, by a direction to their officer to pay, and they point out to whom payment is to be made. It appears to me that the instrument contains all that is essential to constitute a promissory note And see Ellison ». Collingridge, 9 C. B. 570; Hasey v. White Pigeon B. S. Co., 1 Doug. Mich. 193. But in the Marion & M. R. R. Co. v. Dillon, 7 Ind 404, Perkins, J., delivering the opinion of the court, said: “If a man draw a bill or order directly upon himself, payable immediately, it is his promissory note, and may be sued on accordingly. In such case he is the payer as well as drawer, and by the very act of drawing admits he is to pay, and that he has not then the money with which to make payment. But where the debt is due from a company, and it is the duty of one officer or set of officers to allow demands and draw upon another officer who has the custody, and is charged with the duty of the disbursement, of the company's funds, for payment, such order must, as a general rule, be presented in a reasonable time for payment." See further, Varner v. Nobleborough, 2 Greenl. 121; Wetumpka & C. R. R. Co. v. Bingham, 5 Ala. 657; Mobley v. Clark, 28 Barb. 390.

(b) Edis r. Bury, 6 B. & C. 435. Lord Tenterden said: "This is an instrument at

The words "Au besoin," or "In case of need apply to A. B.," are sometimes written after the name of the drawee.

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least of a very ambiguous character. In form it is a promissory note, for it contains in terms a promise to pay the sum mentioned in it; but then in the corner of it there is the name of Grutherot, and it appears that his name is also written across the instrument. In that respect, although it does not in terms contain a request to Grutherot to pay, yet it resembles a bill of exchange. It is an instrument, therefore, of an ambiguous nature, and I think that where a party issues an instrument of an ambiguous nature, the law ought to allow the holder at his option to treat it either as a promissory note or a bill of exchange. That being so, I think it was competent to the plaintiff in this case to consider this as a promissory note; and if so, the notice of the dishonor was unnecessary." Bayley, J.: "I think that this was a promissory note, containing an intimation on the part of Bury that he would pay at Grutherot's house; and I think also, that where a party frames his instrument in such a way that it is ambigu ous, whether it be a bill of exchange or a promissory note, the party holding it is enti tled to treat it either as one or the other, and that the plaintiff ought not to be defeated by the party who framed the instrument being allowed to say that it is a bill of ex change." Holroyd, J: "It seems to me that it was the design of the drawer of this instrument to hold out to the party taking it that he might treat it either as a bill of exchange or a promissory note. Besides, the words of an instrument are to be taken most strongly against the party using them; and, therefore, if there be any ambiguity in the words of this instrument, they ought to be construed favorably for the plaintiff, and against the defendant who made the instrument. Besides, until Grutherot put his name to this instrument, it was clearly in terms a promissory note; and having been once such, the fact of his having afterwards put his name to it as acceptor cannot alter the nature of it." Littledale, J.: "It seems to me that this was a promissory note. It begins with the words 'I promise'; it contains a promise to pay, and that is the form of a promissory note. But it is alleged that there is something at the foot of the instrument which converts it into a bill of exchange; a bill of exchange, however, is addressed to another person, and contains a request to the drawee to pay the same. In order to make this a bill of exchange, the words I promise' must be rejected; and those words constitute the essential difference between a bill of exchange and a promissory note. I think that they ought not to be rejected. Suppose they were rejected, could this instrument then have been declared upon as a bill of exchange before Grutherot accepted it? If it could not, then it was not a bill of exchange at that time; and if it was once a promissory note, Grutherot, by putting his name to it, could not make it a bill of exchange."

In Lloyd v. Oliver, 18 Q. B. 471, an instrument was drawn in the following form: "Two months after date I promise to pay to T. R. L." (plaintiff) " or order, £ 99,15s.' "H. Oliver." Underneath was written, on the left hand of the instrument, "J E Oliver " (defendant). Across it was written, "Accepted, payable S. & Co., bankers, London, E. Oliver." "E. Oliver" was signed by defendant. Held, that the instru ment might be sued upon as a bill of exchange drawn by H. Oliver upon, and accepted by, the defendant. Lord Campbell said: "I am of opinion that this instrument, even before acceptance, might be treated as a bill of exchange as against Henry Oliver, the drawer. As against the defendant, it is clearly a bill of exchange. It is directed to John Edward Oliver; that must mean that John Edward Oliver is requested to pay the sum mentioned at two months after date, although there are no express words of request. The words 'I promise to pay' need not be rejected; they are to be considered as an expression of what otherwise would be implied, namely, that the maker will pay

for the purpose of pointing out some person to whom the payee may apply in case the drawee refuses to accept the bill.(ba)

if the acceptor do not. The instrument is ambiguous, and might, no doubt, if the plaintiff chose, be treated as a promissory note. This is the effect of the decision in Edis v. Bury.” Erle, J.: “As against the defendant, this instrument is clearly a bill of exchange. We must construe the language of it according to known mercantile usage. It has always been the custom, in drawing bills of exchange, to place the name of the party to whom the bill is directed in that part of the instrument where, in the present case, the name of John Edward Oliver, the defendant, is placed. According to the same rule, the word 'Accepted,' followed by a signature, as in the present instrument, implies acceptance of the bill by the party signing. I recollect that it was proved at the trial that the instrument had never been out of the hands of the parties to it until it was in its present form; so that it never could have been simply a promissory note, as has been suggested. It is not unjust to presume that it was drawn in this form for the purpose of suing upon it, either as a promissory note or as a bill of exchange." Crompton, J.: "The instrument contains, in my opinion, a clear direction to John Edward Oliver to pay, and a clear acceptance by him. It is, therefore, a bill of exchange. But it has been decided, and it is most important that the decision should not be impeached, that equivocal instruments of this kind, possessing the character both of promissory notes and of bills of exchange, may be treated as either."

(ba) 2 Pardes., n. 341, 348, 404, 421. See Leonard v. Wilson, 2 Cromp. & M. 589

VOL. I.-E

1

CHAPTER V.

OF PERSONS WHO MAY BE PARTIES TO NOTES OR BILLS.

THERE can be no other rule as to those who may assume the obligations which rest on the makers, drawers, acceptors, or indorsers of negotiable paper, than that which is derived from their nature as instruments of business; namely, that they must be under no incapacity to transact business. This incapacity may be total or partial; and exactly measured by it is their inability to bind themselves as parties to bills and notes. Perhaps no one is incapable of benefiting by a bill or note of which he is promisee or indorsee. An infant, or married woman, or bankrupt may certainly receive a note, although payment should, generally at least, be made, not to such payees in person, but to those who have authority to represent them, as guardian, husband, or assignee. (c) So we should say a lunatic might receive a note; for although a note is not complete until it is delivered and accepted, and a person wholly wanting in intellect cannot accept anything, yet if the note were made in good faith and were in other respects unobjectionable, and if it were for the benefit of the lunatic and laid him under no obligations whatever, it should be regarded as accepted by him, or by some one for him as his guardian or trustee. Those who are incapacitated from effectually making or indorsing promissory notes and bills, in whole or in part, are infants, married women, persons under guardianship, lunatics, alien enemies, and bankrupts.

(c) IIolliday v. Atkinson, 5 B. & C. 501; Teed v. Elworthy, 14 East, 210, Holt v. Ward, 2 Stra. 937; Warwick v. Bruce, 2 Maule & S. 205, 6 Taunt. 118; Nightingale v. Withington, 15 Mass. 272.

SECTION I.

OF INFANTS.

ALL persons are infants, in law, who are under twenty-one years of age, excepting that in some of the States, at least for some purposes, a woman at eighteen is held to be adult. (d) All infants are said to be incapable of entering into contracts, excepting for necessaries. And by necessaries are meant, not only those things which are absolutely essential to life or even comfort, but such other things as are wanted by them and are suited to their means and their way of life.(e)

This incapacity or disability is intended for their benefit and protection against their own indiscretion, or the knavery of others. Hence the exception in respect to necessaries; for these a child must have. Hence too the old distinction between the void and the voidable contracts of an infant; those being held to be voidable only which might be for his benefit, while those were void which could do him no good. But this distinction we suppose to be practically obsolete; all the contracts of an infant, not in themselves illegal, being capable of ratification by him. when an adult, and therefore being voidable only; for if once absolutely void, no ratification could give them any force.(f)

(d) Sparhawk v. Buell, 9 Vt. 41; Davis v. Jacquirn, 5 Harris & J. 100; Ohio Statutes, ch. 59; Maine Acts of 1852, ch. 291; Laws of Missouri, 1849, p. 67; Hartley's Dig. of Texas Laws, art. 2420.

(e) See 1 Parsons on Cont., pp. 244-246. And see Breed v. Judd, 1 Gray, 455. (ƒ) See 1 Parsons on Cont, pp. 243, 244. So far at least as regards bills and notes to which infants are parties, the rule now prevails universally, that they are not absolutely void, but voidable merely at the election of the infant. See Hunt v. Massey, 5 B. & Ad. 902; Gibbs v. Merrill, 3 Taunt. 307; Williams v. Moor, 11 M. & W. 256 ; Harris v. Wall, 1 Exch. 122; Reed v. Batchelder, 1 Met 559; Aldrich v. Grimes, 10 N. H. 194; Edgerly v Shaw, 5 Fost 514: Goodsell v. Myers, 3 Wend. 479; Taft v. Sergeant, 18 Barb. 320; Cheshire v. Barrett, 4 McCord, 241 ; Little v. Duncan, 9 Rich. 55. But see McMinn v. Richmonds, 6 Yerg. 9. It has sometimes been objected, that, unless the bill or note of an infant be held absolutely void, it will bind him in the hands of a bona fide holder for value. But this proceeds upon a mistake. The incapacity of a party to a bill or note is not one of the equities which cannot be set up against a bona fide holder. In this respect a subsequent bona fide holder stands upon the same footing as the payee, and he must inquire as to the capacity of the parties to the paper, at his peril. So, too, although it is said that the bill or note of an infant is not void, but voidable, it is not meant by this that it is valid until avoided, but merely

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