FORM AND INTERPRETATION.

§ 3.

change defined.

3. A bill of exchange is an unconditional order Bill of Exin writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay, on demand or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer: Imp. Act, s. 3 (1).

The foregoing clause is copied from the Imperial Act without change. Probably no definition of a bill of exchange has yet been given which is not open to criticism. The phraseology of this section is not the most felicitous, as the next clause almost discredits the definition in two respects. First, a bill of exchange must be "unconditional," yet the next sentence speaks of the "conditions," of which there appear to be no less than six. Again, the introduction of the words "except as hereinafter provided" is an intimation that certain instruments which do not meet the requirements of the definition are nevertheless bills of exchange.

This definition also includes a cheque and is declaratory of the former law: McLean v. Clydesdale Banking Co., 9 App. Cas. per Lord Blackburn at p. 106 (1883).

The Civil Code of Lower Canada says: "Article 2279. A bill of exchange is a written order by one person to another for the payment of money absolutely and at all events. Article 2280.-It is essential to a bill of exchange: That it be in writing and contain the signature or name of the drawer; That it be for the payment of a specific sum of money only; That it be payable at all events without any condition."

M'C.B.E.A.-3

$ 3.

The definition in the Code is taken from Kent's Commentaries, vol. 3, p. 74. Kent copied it from Bayley on Bills, p. 1, and speaks of it as "a concise, clear and accurate production." Blackstone says a bill of exchange is " an open letter of request from one man to another desiring him to pay a sum of money therein named to a third person on his account": 2 Comm. 466. Chitty follows Blackstone. For a very full list of the different definitions given by various authors, see 1 Randolph, § 3,

note.

In France the law governing bills of exchange differs in some important particulars from that of England or the United States, as may be seen from the following definition taken from the Code de Commerce, Art. 110:-" A bill of exchange is drawn from one place on another. It is dated. It sets forth, the sum to be paid; the name of the person who is to pay; the time and place of payment; the value given in money, goods, account or otherwise. It is payable to the order of a third party, or of the drawer himself. It must state whether it be the first, second, third, or fourth, etc., of the same tenor and contents."

A bill of exchange is sometimes called a draft, and after it has been accepted, sometimes an acceptance. It may be in any language, and in any form of words that complies with the requirements of the foregoing definition or the provisions of the Act. Where an instrument is so ambiguous as to make it doubtful whether it is a bill of exchange or a promissory note, the holder may, as against the maker, treat it as either: Edis v. Bury, 6 B. & C. 433 (1827); Forbes v. Marshall, 11 Ex. 166 (1855); Fielder v. Marshall, 9 C. B., N. S. 606 (1861).

"An Unconditional Order.”—A bill of exchange is an order, and is in its nature the demand of a right, not the

mere asking of a favor, and therefore a supplication made, § 3. or authority given to pay an amount is not a bill: Daniel,

35. The person addressed is "required" to pay the sum named. The insertion of mere terms of courtesy, however, will not destroy its validity. It seems impossible to reconcile the conflicting decisions on this point. The same may be said to be true as to what orders have been held to be "unconditional." As to an instrument payable on a contingency, see section 11 and the notes and illustrations thereunder. A promissory note is an unconditional promise to pay section 82. For illustrations of irregular instruments in this respect see notes under that section.

ILLUSTRATIONS.

The following have been held to be valid bills :

1. "Mr. Warren please let the bearer William Tuke, have the amount of £10, and you will oblige me, B. B. Mitchell": Reg. v. Tuke, 17 U. C. Q. B. 296 (1858).

2. "Mr. Nelson will much oblige Mr. Webb by paying J. Ruff, or order, on his account, twenty guineas": Ruff v. Webb, 1 Esp. 129 (1794).

3. To the Cashier,-Credit P. & Co., or order, with £500, claimed, per Cleopatra, in cash, on account of this corporation, A. C., Managing Director" Ellison v. Collingridge, 9 C. B. 570 (1850); Allen v. The Sea Fire and Life Assurance Co., 9 C. B. 574 (1850).

4. An order written under a note "Please pay the above note, and hold it against me in our settlement": Leonard v. Mason, 1 Wend. 522 (1828).

5. Also a like order written under an account: Hoyt v. Lynch, 2 Sandf. 328 (1847).

6. Please let the bearer have $50. I will arrange it with you this forenoon, Yours truly": Bresenthal v. Williams, 1 Duval, 329 (1864).

$ 3.

varied by

parol.

The following have been held not to be valid bills :—

1. An open letter from one Government officer to another desiring the latter to pay plaintiff a certain sum of money due him by the department: McLean v. Ross, 3 Rev. de Leg. 434 (1816). 2.

Please to send £10 by bearer, as I am so ill I cannot waits upon you": Rex v. Ellor, 1 Leach 323 (1784).

3. "Mr. L., please to let the bearer have £7, and place it to my account, and you will much oblige your humble servant S.": Little v. Slackford, 1 M. & M. 371 (1828).

4. A note written by the creditor to his debtor at the foot of the creditor's account requesting the debtor to pay the account to the creditor's agent Norris v. Soloman, 2 M. & Rob. 266 (1840).

5. "To E. & S.--We hereby authorize you to pay on our account to the order of G. £6,000, W. & S." Hamilton v. Spottiswoode, 4 Ex. 200 (1849).

"In Writing."-Writing, as defined in the Interpretation Act, R. S. C. c. 1, s. 7 (23), "includes words printed, painted, engraved, lithographed, or otherwise traced or copied." It is not material whether the writing be in pencil or ink, though as a matter of permanence and security ink is of course preferable. A writing in pencil is within the meaning of that term at common law, and within the custom of merchants: Geary v. Physic, 5 B. & C. per Bayley, J. at p. 238 (1826). See also Jeffery v. Walton, 1 Stark. 267 (1816); Rymes v. Clarkson, 1 Phil. 22 (1809); Dickenson v. Dickenson, 2 Phil. 173 (1814).

Cannot be It is a general rule of law that contracts in writing cannot be varied by extrinsic evidence of the intention of the parties: Burges v. Wickham, 3 B. & S. 669 (1863); Taylor § 1132; or as it is put in the Civil Code, Art. 1234,

"Testimony cannot in any case be received to contradict § 3. or vary the terms of a valid written instrument." According to this rule the contracts of the parties to bills of exchange and promissory notes as appearing upon the face of the instrument whether of drawer, acceptor, maker or indorser, cannot be varied by parol evidence: Hart v. Davy, 1 U. C. Q. B. 218 (1844); Ewart v. Weller, 5 U. C. B. 610 (1849): Adams v. Thomas, 7 U. C. Q. B. 249 (1850); Davis v. McSherry, 7 U. C. Q. B. 490 (1850); Hall v. Francis, 4 U. C. C. P. 210 (1854); Hammond v. Small, 16 U. C. Q. B. 371 (1858); Armour v. Gates, 8 U. C. C. P. 548 (1859); Street v. Beckwith, 20 U. C. Q. B. 9 (1860) Moore v. Sullivan, 21 U. C. Q. B. 445 (1862); Chamberlain v. Ball, 5 L. C. J. 88 (1860); Scott v. Quebec Bank, 7 L. N. 343 (1884); Decelles v. Samoisette, M. L. R. 4 S. C. 361 (1888); Inglis v. Allen, 1 N. S. D. 101 (1867); Graham v. Graham, 11 N. S. (2 R. & C.) 265 (1877); Taylor v. McFarlane, 12 N. S. (3 R. & C.) 190 (1878).

tions.

Thus in an action brought upon a bill or note, it is not Illustraadmissible to prove that at the time of making it was agreed verbally that the bill or note should be renewed or not paid at maturity: Bradbury v. Oliver, 5 U. C. O. S. 703 (1839); Durand v. Stevenson, 5 U. C. Q. B. 336 (1849); Hayes v. Davis, 6 U. C. Q. B. 396 (1850); McQueen v. McQueen, 9 U. C. Q. B. 536 (1852); Bank of Upper Canada v. Jones, 1 Pr. R. 185 (1854); Harper v. Paterson, 14 U. C. C. P. 538 (1864); Vidal v. Ford, 19 U. C. Q. B. 88 (1859); Porteous v. Muir, 8 O. R. 127 (1885); Imperial Bank v. Brydon, 2 Man. L. R. 117 (1885); Young v. Austen, L. R. 4 C. P. 553 (1869); or, that the instrument expressed to be payable at a certain time should be payable only in a given event; Harvey v. Geary, 1 U. C. Q. B. 483 (1845); Reed v. Reed, 11 U. C. Q. B. 26 (1853); Royal Canadian Bank v. Minaker, 19 U. C. C. P. 219 (1869);