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Unconditional order defined
10. A promise to pay £10 and all fines according to rule: Ayrey v. Fearnsides, 4 M. & W. 168 (1838).
11. An order requiring payment of a certain sum, "and to take up a note for the drawer": Irvine v. Lowry, 14 Peters, 293 (1840).
12. An order for "$800, and such additional premiums as may be due on policy, No. 218,171 ": Marrett v. Equitable Ins. Co., 54 Maine, 537 (1867).
3. An order to pay out of a particular fund is not unconditional within the meaning of this section; but an unqualified order to pay, coupled with (a) an indication of a particular fund out of which the drawee is to re-imburse himself, or a particular account to be debited with the amount, or (b) a statement of the transaction which gives rise to the bill, is unconditional: Imp. Act, s. 3 (3).
An order to pay out of a particular fund is not a bill, being conditional, as the fund may prove inadequate. It may, however, be a valid assignment of the fund, or a part of it, and operate without an acceptance by the debtor. A bill may be accepted, payable out of a certain fund. As will be seen from the following illustrations, the decisions have not been consistent as to whether a particular bill should fall within the first or the second of the classes indicated in the above clause.
The following have been held not to be bills or notes, as being payable out of a particular fund :
1. An order for £25, payable out of S's money: Ockerman v. Blacklock, 12 U. C. C. P. 362 (1862).
2. An order to pay £125, "on account of the plaintiff's $3. Corp. of Perth v. McGregor, 21 U. C.
claim in this suit": Q. B. 459 (1862).
"out of the first moneys received by you Fullerton v. Chapman, 2 N. S. D. 470
3. An order to pay on my account": (1871).
4. An order by a captain for £420, as being the full amount of freight for the voyage: Brett v. Lovett, 2 N. S. D. 472 (1871).
5. An order to pay £7 "out of my growing substance": Josselyn v. Lacier, 10 Mod. 294 (1715).
6. An order to pay "out of the moneys arising from my reversion": Carlos v. Fancourt, 5 T. R. 432 (1794).
7. " To B.-I do hereby order, authorize and request you to pay to B. £- out of moneys due or to become due from you to me, and his receipt for same shall be a good discharge. G.": Brice v. Bannister, 3 Q. B. D. 569 (1878); see Buck v. Robson, ibid. 686 (1878).
8. A promise to pay out of the net proceeds of ore: Worden v. Dodge, 4 Denio, 159 (1847); Morton v. Naylor, 1 Hill 583 (1841); Gallery v. Prindle, 14 Barber 186 (1851).
9. An order to pay $"and deduct the same from my share of the profits of the partnership": Munger v. Shannon, 61 N. Y. 251 (1874).
The following have been held to be valid bills and notes as coming within the rule in the latter part of the above subsection :
1. A promise to pay $150, with the clause added, "which when paid is to be endorsed on the mortgage bearing even date herewith": Chesney v. St. John, 4 Ont. A. R. 150 (1879).
2. A promise to pay, with a memorandum that the note was given for insurance premiums: Wood v. Shaw, 3 L. C. J. 169 (1858).
Bill not invalid for reason
3. An order to pay on account of wine had of the drawer: Buller v. Cripps, 6 Mod. 29 (1703).
4. An order to pay £9, "as my quarterly half pay, by advance": Macleod v. Snee, 2 Str. 762 (1728).
5. A promise to pay £50, being a portion of a value as under deposited, deposited in security for the payment hereof: Haussoullier v, Hartsinck, 7 T. R. 733 (1798).
6. A promise to pay £16 "by giving up clothes and papers, etc."; these latter words being merely equivalent to "value received": Dixon v. Nuttall, 6 C. & P. 320 (1834).
7. An order to pay £600 "on account of moneys advanced by me for the F. Co.": Griffin v. Weatherby, L. R. 3 Q. B. 753 (1868).
8. An order for £3,374 "against credit No. 20, and place it to account as advised": Banner v. Johnston, L. R. 5 E. &. I. App. 157 (1871).
9. An order to pay £200 out of moneys which would become payable on the completion of a contract: ex parte Shellard, L. R. 17 Eq. 109 (1873). Disapproved in Buck v. Robson, 3 Q. B. D. 686 (1878).
10. An order for £7,000" which is on account of dividends and which charge to my account according to a registered letter I have addressed to you": Crofton v. Crofton, 33 Ch. D. 612 (1886).
4. A bill is not invalid by reason
(a) That it is not dated: Imp. Act, s. 3 (4) (a). A bill without a date is irregular, although not invalid. If issued undated and payable at a fixed period after date, any holder may insert the true date of issue and it shall be payable accordingly: section 12. It is presumed to be dated on the day it is made: Hague v. French, 3 B. & P. 178 (1802); Giles v. Bourne, 6 M. & S. 73 (1817); and
proof of this may be made by parol: Davis v. Jones, 17 § 3. C. B. 625 (1856). Although not an essential part of a bill the date is a material part, and when altered without proper assent renders the bill void: section 63. In France a bill must be dated or it is invalid: Code de Com. Art. 110.
(b) That it does not specify the value given, or that any value has been given therefor: Imp. Act, s. 3 (4) (b).
Formerly the words "value received" or some words implying consideration were necessary: Byles, p. 95; Randolph, § 159. By the Civil Code of Lower Canada, Article 2285, when a bill contains the words " value received " value for the amount of it is presumed to have been. received on the bill and upon the indorsements thereon: Larocque v. Franklin County Bank, 8 L. C. R. 328 (1858); Walters v. Mahan, 6 L. N. 316 (1883). Even when these words are in a bill, parol evidence may be received to prove the contrary: Davis v. McSherry, 7 U. C. Q. B. 490 (1849); Baxter v. Bilodeau, 9 Q. L. R. 268 (1883); Abbott v. Hendricks, 1 M. & G. 791 (1840). In an accepted bill, payable to the order of the drawer, these words imply value received by the acceptor: Highmore v. Primrose, 5 M. & S. 65 (1816). If the bill be payable to a third party they imply value received by the drawer: Grant v. Da Costa, 3 M. & S. 351 (1815). In England these words have long been unnecessary: Hatch v. Trayes, 11 A. & E. 702 (1840).
(c) That it does not specify the place where it is drawn or the place where it is payable: Imp. Act, s. 3 (4) (c).
The place where a bill is drawn is usually placed at the top before the date. If no place is specified the holder may
§ 3. treat it as an inland bill, even although drawn abroad: section 4. In France the place must be stated on the bill: Code de Com. Art. 110; Nouguier, §§ 93-105.
If no place of payment is specified it is payable generally. It may be payable at either of two places at the option of the holder: Pollard v. Herries, 3 B. & P. 335 (1803); Beeching v. Gower, Holt N. P. C. 313 (1816). An acceptance may name the place of payment: section 19 (2) (a). A change in the place of payment or the addition of a place of payment without the acceptor's assent is a material alteration, and may render the bill void section 63, 8-s. 2. In France the place of payment must be different from that where it is drawn, and there must be a possible rate of exchange between the two places: Code de Com. Art. 110; Nouguier, §§ 93-105. The tendency in France is towards a relaxation of this rule.
4. An inland bill is a bill which is, or on the face of it purports to be (a) both drawn and payable within Canada, or (b) drawn within Canada upon some person resident therein. Any other bill is a foreign bill: Imp. Act, s. 4 (1).
This clause is taken from the Imperial Act, the only change being the substitution of "Canada" for the "British Islands." Prior to the passing of the Act, the different provinces were, as a rule, considered to be foreign to each other; but a note made in Upper Canada, payable in Montreal, was held to be payable generally under 7 Wm. 4, c. 5, and treated as an inland note: Bradbury v. Doole, 1 U. C. Q, B. 442 (1841). In a later case, however, a similar note was treated as a foreign note and proof of the Lower Canadian law received: McLellan v. McLellan, 17 U. C. C. P. 109 (1866).