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§ 8. indication of an intention that a bill should not be transferable, see the notes to sub-section 1 of this section.
Option of payee.
Under the old law if a bill originally negotiable were indorsed to a particular person and not to his order, it would still be negotiable by him: Moore v. Manning, Comyns, 311 (1719).
5. Where a bill, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order, at his option. Imp. Act, s. 8 (5).
A bill payable to a person "or his order" or "to the order" of a person means the same thing, and in either case he can demand payment without indorsing it: Myers v. Wilkins, 6 U. C. Q. B. 421 (1850). A note payable "to A. or order on account of B." is payable to A. or to his order and not to B.: Newton v. Allen and Moir v. Allen, 2 Rev. de Leg 29 (1817); Clarke v. Esson, 2 Rev. de Leg. 30 (1820).
9. The sum payable by a bill is a sum certain within the meaning of this Act, although it is required to be paid
(a.) With interest;
(b.) By stated instalments;
(c.) By stated instalments, with a provision that upon default in payment of any instalment the whole shall become due;
(d.) According to an indicated rate of exchange, or according to a rate of exchange to be ascertained as directed by the bill: Imp. Act, s. 9 (1).
A bill must be for "a sum certain in money ": section 3. § 9. See notes and illustrations ante p. 42. This section gives some instances that might not be thought to come under that designation unless specially so declared.
"With interest."-It may be "with interest" simply, or with interest at a certain rate. In the former case the rate up to maturity at least would be determined by the law of the place where the bill is drawn: Story on Conflict of Laws, 8th ed., s. 305: Allen v. Kemble, 6 Moore P. C. 321 (1848). In Canada when no special rate is mentioned, the law fixes it at 6 per cent., but the parties may agree upon any higher or lower rate: R. S. C. c. 127, ss. 1 and 2. Formerly there were restrictions in certain cases in most of the provinces. In Ontario and Quebec certain corporations could not take more than six, and others not more than eight per cent: ib. section 10. See as to Nova Scotia 88. 12 to 17; New Brunswick, ss. 18 to 23; British Columbia, ss. 24 to 27; Prince Edward Island, ss. 28 to 30. The restrictions relating to these provinces were all abolished by the Act of 1890 immediately following the present Act, 53 Vict. c. 34, which repeals sections 9 to 30 inclusive of R. S. C. c. 127. Banks are subject to the following limitation: "The bank shall not be liable to incur any penalty or forfeiture for usury, and may stipulate for, take, reserve or exact any rate of interest or discount not exceeding seven per centum per annum, and may receive and take in advance any such rate, but no higher rate of interest shall be recoverable by the bank": Bank Act, 53 Vict. c. 31, s. 80. Section 81 provides that no promissory note or bill of exchange discounted by or assigned to a bank shall be void on the ground of usury, on account of its bearing a higher rate of interest than is allowed in the province, but the bank shall not be
§ 9. entitled to recover more than seven per cent. On account of the repeal of the usury clauses of "The Act respecting Interest" affecting the different provinces, as mentioned above, the greater part of the latter section is now inoperative. Certain corporations by their charters are restricted as to the rate of interest they may take. These are not affected by the above repeal.
In England the rate is 5 per cent. but the parties may agree upon any other rate: Upton v. Ferrers, 5 Ves. 803 (1801). In the United States the rate varies. In most of the northern and north-eastern States the legal rate is 6 per cent.; in Wisconsin, Minnesota, and some other western States it is 7 per cent. In Massachusetts, Rhode Island, and Connecticut, usury laws have been abolished; in the other northern and north-eastern States they still exist with varying degrees of severity. In New York any higher rate than 6 per cent. is only allowed in exceptional cases. In Ohio, Indiana and Illinois the maximum is 8 per cent.; in Michigan, Wisconsin, and Minnesota, 10 per cent.
Where a bill drawn in one country is negotiated, accepted or payable in another, for the rule as to what rate of interest is to govern, see the notes under section 71.
Where a special rate of interest is mentioned in the bill, see the notes and cases under section 57, s-s. 2, as to the rate which is to run after maturity.
"By Stated Instalments."-The instalments must be "stated," for if there be any. uncertainty about them the instrument is not a bill. The instalments may be either with or without interest. As to presentment and notice of dishonor each instalment is treated as a separate bill.. A valid indorsement must be of all instalments unpaid.
1. A promise to pay £102" in yearly proportions" held to be a valid note payable in two annual instalments: McQueen v. McQueen, 9 U. C. Q. B. 536 (1853).
2. An action lies on a note payable by instalments as soon as the first day of payment is passed, but only for the amount of the first instalment, each of them being considered as a separate debt Clarihue v. Morris, 2 Rev. de Leg. 30 (1820).
3. A bill was payable in three equal instalments. When the first became due, it was presented at the bank where it was made payable, the cashier paid the instalment due, and returned the bill to the holder with the following indorsement : Paid on the within $741, Aug. 12 '61." Held to be an acceptance for the remaining instalments: Berton v. Central Bank, 10 N. B. (5 All.) 493 (1863).
4. A promise to pay £50 by instalments, all payments to cease on the death of W. is not a note: Worley v. Harrison, 3. A. & E. 669 (1835).
5. A promise to pay £6 "by instalments" simply, is not a note: Moffat v. Edwards, Car. & M. 16 (1841).
6. A note payable by instalments, with a proviso that if default is made on the first instalment, the whole shall become due is a valid note, and on default an indorser is liable for the whole amount: Carlon v. Kenealy, 12 M. & W. 139 (1843).
7. A non-negotiable note, payable in instalments, but on default, the whole to become due, is valid, and the maker has three day's grace: Miller v. Biddle, 14 Jur. N. S. 980; 13 L. T. N. S. 334 (1865).
8. A note payable" in such instalments, and at such times. as the directors of a company may from time to time require," held to be a valid note, as being payable on demand, or in instalments on demand: White v. Smith, 77 Ill. 351 (1875).
"With Exchange."-Where the bill is to be paid in one country and the sum is expressed in the currency of
§ 9. another, the amount is determined according to the rate of exchange on the day the bill is payable: Hirschfield v. Smith, L. R. 1 C. P. p. 340 (1866); section 71, 2 (d). On a sterling bill drawn in London on defendant in Toronto, but accepted by him in London and payable there, plaintiff was held entitled to be paid at the current rate of exchange: Greatorex v. Score, 6 U. C. L. J. 212 (1860). It was formerly held in Ontario that a promise to pay a certain sum "with exchange on New York" or "with the current rate of exchange on New York" or "with exchange not to exceed one-half per cent." was not valid as not being for a sum certain: Palmer v. Fahnestock, 9 U. C. C. P. 172 (1859); Fahnestock v. Palmer, 20 U. C. Q. B. 307 (1860); Grant v. Young, 23 U. C. Q. B. 387 (1864); Wood v. Young, 14 U. C. C. P. 250 (1864); Saxton v. Stevenson, 23 U. C. C. P. 503 (1874). It was also held in New Brunswick that a promise to £42 3s. 9d. with current rate of exchange on Boston was not a promissory note: Nash v. Gibbon, 9 N. B. (4 Allen) 479 (1860). It was also held in a number of cases in Ontario that notes payable in current funds of the United States were not valid, but these cases were expressly overruled in Third National Bank of Chicago v. Cosby, 43 U. C. Q. B. 58 (1878).
pancy between figures and words.
2. Where the sum payable is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the amount payable: Imp. Act, s. 9 (2).
Usually the amount is stated in words in the body of the bill, and in figures in the margin. In some countries the law requires the amount to be stated in words, while in others both are required: Randolph, § 105. The figures in the margin form no part of the bill or note: Garrard v. Lewis, 10 Q. B. D. 30 (1882). When the words are not