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It was for some time unsettled whether it was not essential that a bill or note should be payable
counts of the declaration, which stated the bill to be payable to bearer.
This case was followed by that of Minet v. Gibson, 3 Term Rep. 481. 1 H. Bl. 569. where a bill drawn by Livesay and Co. on the defendants were made payable to John White, or order, and it was found upon a special verdict, that White was a fictitious person, that his name was indorsed upon the bill by Livesay and Co.; that the defendants knew, when they accepted the bill, that no such person as John White, whose indorsement was then upon the bill, existed, and that the indorsement was not made by any person of that name, the court of King's Bench thought this case decided by Vere and Lewis, and gave judgment for the plaintiffs; and on a question from the House of Lords, whether the bill might not be deemed in law to be payable to the bearer, Hotham, Perryn, and Thompson, Barons, and Gould, J. gave it as their opinions that it might; but Eyre, C. B. and Heath, J. differed: after which Lord Kenyon, Lord Loughborough, and Lord Bathurst spoke in favour of the judgment, and Lord Thurlow against it, and the judgment was affirmed without a division.
After the judgment in Minet v. Gibson, in the King's Bench, and before its determination in the House of Lords, came on the case of Collet v. Emmett, 1 H. Bl. 313. where Livesay and Co. (who were authorised by the defendant to draw for him by his writing his name on a piece of blank paper with a shilling bill stamp thereon), made a bill payable to George Chapman, or order, and indorsed it with George Chapman's name; and it appearing that there was no such person as George Chapman, the court of Common Pleas, after two arguments, and time taken to consider, held that the action might fairly be supported on a count that stated the bill to be payable to bearer, and there being such a count in the declaration, they gave the plaintiffs judgment upon it. Vide Bennet v. Farnell, Į Camp. 180,
either to order, or to (62) bearer, but it is now decided that it is not.
But where the bill or note is payable otherwise than to the bearer, it must contain the name of the payee.
In an action for
(62) Smith v. Kendall, 6 Term Rep. 123. money paid and lent, the defendant pleaded the statute of limitations, and the plaintiff replied a latitat sued out 26th Sept. 1793. A note was given in evidence dated 25th June, 1787, and payable to the plaintiff three months after date, but it was not payable either to order or to bearer, and the court on consideration held that it was a good note within the statute, that it was entitled to three days' grace, and consequently that the statute of limitations did not begin to run until those three days had expired, which was on 28th September, 1787, and therefore within six years of 26th September, 1993. See also Chadwick v. Allen, ante, p. 5. The old entries also describe the custom upon bills to be to pay the payee without adding any words to make them payable to order or to bearer. Lutw. 231.277.891. Vid. 17 Brownl. Rep. 77. Clift. 916.; and see Lord Raym. 1545.
Rex v. Box, 6 Taunt. 325. Indictment for forging a promissory note. The note was as follows: "On demand we pro"mise to pay Mesdames S. W. and S. D., stewardesses for "the time being of the Provident Daughters Society, held at "the Hope, Smithfield, or their successors in office, 647., with "51. per cent. interest, value received this 7th February, 1815, "for F. C. and Co. J. Forster." This society was not enrolled according to 33 G. 3. c. 34., so that these payees were not strictly stewardesses, nor could they legally have successors in office, and it was insisted that this was not in law a promissory note: but on a case for the opinion of the twelve judges, they were unanimously of opinion that it was: that it was not essential a note should be negotiable, that the description of stewardesses was one which went to designate the payees, and the note, if genuine, would have enured to them, and the survivor of them, and the executors and administrators of such survivor, and the conviction of the prisoner was held right.
Uncertainty as to the person to whom the payment shall be made will prevent an instrument from being a bill or note, as making it payable to A. or B. (63)
If a bill or note is issued with a blank for the payee's name, any bona fide holder may insert his own name as payee. (64)
(63) Blankenhagen v. Blundell, 2 Barn. & Ald. 417. Declaration on a note by which it was stated that defendant promised to pay J. P. Dahmer or plaintiffs, or his or their order; another count stated Dahmer to be since dead: each count averred that the note was delivered to plaintiffs, and negatived payment to Dahmer defendant demurred, and on argument the court were clear this was not a note within the statute, because it was not payable in certain either to Dahmer or the plaintiffs, but the claim of either, or of the indorsee of either, might be defeated by payment to the other; and if it were not within the statute, when issued, subsequent events could not make it so. It was urged, that in legal operation it was payable to Dahmer and plaintiffs, but the court said they could not take that to be its operation as the declaration was framed, and judgment was given for the defendant.
(64) Cruchley v. Clarance, 2 Maule, 90. In an action by the payee of a bill against the drawer, it appeared that defendant drew the bill in Jamaica, and sent it to England with a blank for the payee's name, that it was put into negotiation here, and afterwards paid to the plaintiff for an old debt, without the blanks being filled and that he inserted his own name as payeé: plaintiff had a verdict; and on motion for nonsuit or new trial, the court held plaintiff warranted in inserting his own name, for by leaving the blank the defendant authorized any bond fide holder to fill it up, and the rule was refused.
Cruchley v. Mann, 5 Taunt, 529. Plaintiff brought another action on the same bill against the acceptor: one objection was that the blank was filled up without Clarance's authority, and Clarance gave in evidence that he did not authorize the inser
But until the blank is filled up it is not a bill or note. (65)
Unless perhaps where it may be considered in legal operation as payable to the order of the drawer.
Giving a payee a wrong description, if there is no doubt as to the person, is of no (66) consequence.
Sect. 9. The (67) name of the person making it must be inserted in the body, or subscribed
tion; but it appears that Clarance had passed the bill to Vashon, that Vashon had passed it to plaintiff, and that defendant accepted it under Clarance's eye and at Clarance's instance, after plaintiff's name was inserted; the court was clear Clarance's consent must be implied, and a rule for a new trial was refused. (65) Rex v. Randall, Trin. 1811. The prisoner was indicted for forging a bill of exchange, the bill was payable to or order (leaving a space for the payee's name), and was in appearance a navy-bill for an officer's wages; the point was saved for the consideration of the judges, whether this could be deemed a bill, there being no payee: it was urged that such a bill authorized any proper holder to fill up the blank as he might choose: but the judges held it was no bill till the blank was filled up, and recommended it to the judge who tried the prisoner to apply to the Crown for his pardon.
The declaration upon a
(66) See Rex v. Box, ante, p. 29. (67) Taylor v. Dobbins, Str. 399. note stated that the defendant wrote it with his own hand, but did not allege that he signed it, and an exception was taken on that ground. Sed per cur. If the defendant wrote it, his subscription to it was unnecessary; it is sufficient if his name appeared in any part. "I, J. S. promise to pay" is as good as
at the bottom of every bill or note,
and every bill or note must be written or signed by the person making it, or some one authorized by him for that purpose.
The clerk, who signs bank notes, need not have authority for that purpose under the common seal. (68)
Elliot v. Cowper, Str. 609. Lord Raym. 1376. 8 Mod. 307. It was objected on demurrer to a declaration on a note, that it alleged only that the defendant made it, but did not state that he signed it; but by the court, if he did not either write or sign it, he did not make it, for making implies signing, and making is alleged. Judgment for plaintiff.
Smith v. Jarves, Lord Raym. 1484. The declaration upon a note drawn by Jarves and Baily, stated that Jarves for himself and partner made his note in writing with his own hand subscribed, whereby he promised for himself and partner to pay. It was objected on demurrer, that it was not charged, that Jarves had signed the note for himself and Baily; but the court held the statement shewed that Jarves did sign for himself and Baily, and gave the plaintiff judgment.
Ereskin v. Murray, Lord Raym. 1542. In an action on a bill it was alleged that the plaintiff made his bill in writing, and thereby requested the defendant to pay. It was objected on error, that it did not appear that the plaintiff signed the bill; but it was answered, that the allegation that he made it, and required the defendant to pay, implied that his name was in it, (otherwise he could not request,) and that he or somebody for him wrote it. Judgment for the plaintiff was affirmed.
(68) Rex v. Bigg, 3 P. Will. 419. On an indictment under 8 & 9 W. 3. c. 20. s. 36. for altering and erasing a genuine bank note, it was found upon a special verdict that the person who signed the note was employed by the company to sign notes, but that he had no authority under their common seal: an objection was taken that an authority under their common seal was necessary: many other objections were taken, and what was the opinion of the judges upon each is not stated; but