(3.) Where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer (e).

(a.) This section defines what is meant by a specified person in § 3 (1). It is not necessary that any description be added to the name of the payee, nor that his Christian name be given. The want of the Christian name or of a description is supplied by possession of the bill, Erskine iii. 2, 26. If the payee is not named, he must be indicated with reasonable certainty. Thus in a bill drawn payable "to my order,” the signature of the drawer explains these words. The indication must be in the bill itself, and not in a separate writing. A bill, for example, payable "to the person named in my letter of advice" is not a bill. Where the name of the payee is not stated, the person in possession of the bill has a primá facie authority to fill in the name of any person he thinks fit, vide § 20, but if there be no blank in which a name can be filled in, the writing is not a bill. Thus in Macdonald v. Shand, 19th July, 1872, 10 M. 984, the writing ran, "I promise to pay on demand £100, value received," signed A. B., it was held that it was not a promissory note, as it wanted the name of a payee, and had no blank for a payee's name, and was struck at by the Act of 1696, c. 25. If, however the payee can be ascertained from the bill or note, though not in terms mentioned as payee, the bill or note will be valid. In M'Cubbin v. Stephen, 9th July, 1856, 18 D. 1824, a writing bearing "Received from A. B. the sum of £30, payable on demand," signed C. D., was held to contain a promise to pay to A. B.; see also Green v. Davies, 4 B. and C. 235.

(b.) A bill payable to two or more payees jointly must be presented for payment by or on behalf of all of them, and must be indorsed by or on behalf of all of them. A bill payable to A. and B. jointly and severally is payable to either of them. Where a bill is made payable to a majority or quorum of the payees, it may be negotiated or discharged either by the whole of them or by the majority or quorum.

(c.) This provision alters the common law, Holmes v.

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Jacques, L. R. 1, Q. B. 376; Thomson v. Philp, 25th Mar. 1867, 5 M. 344.

(d.) A bill payable to the unnamed holder of an office is not a warrant for summary diligence, Fraser v. Bannerman, 21st June, 1853, 15 D. 756, and vide note on § 98.

(e.) By § 54 the acceptor is precluded from denying to a holder, in due course, the existence of the payee. This clause, however, renders it unnecessary for any holder to show that the acceptor knew that the payee was a fictitious person. In England, it was decided that the onerous indorsee of a bill drawn payable to a fictitious person, and purporting to be indorsed by him, was entitled to sue an acceptor, who knew that the payee was a fictitious person, but not otherwise. No indorsement of such a bill is necessary. It is negotiated by delivery, vide § 31 (2); but if there be no indorsement, or if the genuineness of the indorsement be challenged, the holder must prove that the payee is a fictitious or non-existing person.

8. (1.) When a bill contains words prohibiting transfer, or indicating an intention that it should not be transferable, it is valid as between the parties thereto, but is not negotiable (a).

(2.) A negotiable bill may be payable either to order or to bearer.

(3.) A bill is payable to bearer which is expressed to be so payable, or on which the only or last endorsement is an endorsement in blank (b).

(4.) A bill is payable to order (c) which is expressed to be so payable, or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer, or indicating an intention that it should not be transferable.

(5.) Where a bill, either originally or by indorse

ment, 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.

(a.) This section enacts that a bill shall be negotiable except
where it contains words-(1) prohibiting transfer, or (2)
indicating an intention that it should not be transferable.
The law of England, differing from the law of Scotland, held
that no bill was negotiable which was not drawn payable to
order. The effect of this rule was to deprive a bill, through
an accidental omission, of one of its chief characteristics, and
necessarily led to inconvenience in the mercantile intercourse
of the two countries. The adoption of the Scotch rule assimi-
lates the law of England on this point to that of most other
mercantile countries. The omission of the words "
or order
is, therefore, not of itself an indication that the parties did
not intend the bill to be not negotiable. Transfer of a bill
is prohibited where it is made payable to A. B. only; and
where a bill bears to be payable to A. B. for my use, or A. B.
for collection, it is held to be an indication that the bill is
not negotiable. If a bill be drawn payable to A. B. or order
for collection, the payee may indorse it; but the indorsee
takes the bill subject to the obligation to account to the
drawer for the amount received by him when the bill is paid,
vide § 35. For the rules relating to the negotiation of bills,
and the rights acquired by the holders of bills, vide $$ 31-38.

(b.) A bill payable to A. B. or bearer is payable to bearer,
and the name of the payee may be disregarded. Apparently,
the holder of a bill with a blank indorsement, followed by
special indorsements, may cancel the special indorsements, and
the bill is then payable to bearer, I. Bell's Com. 428, vide
§ 34.

(c.) A bill payable to order may be expressed thus,—" Pay to A. B.; 99 66 Pay to A. B. on order;" or, "Pay to A. B.'s order." The effect of these three forms is now the same, and in whichever way a bill may be expressed, the payee may sue in his own name for payment, or may negotiate the bill by indorsing it.

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9. (1.) The sum payable by a bill is a sum certain

Sum payable. Within the meaning of this Act, although it is required

to be paid

(a.) With interest (a).

(b.) By stated instalments (b).

(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 (c).

(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 (d).

(3.) Where a bill is expressed to be payable with interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof (e).

(a.) Where no rate of interest is named or legal interest is mentioned, five per cent. per annum is implied in inland bills, but a higher rate will be allowed in the case of bills payable in a foreign country, where a higher rate of interest is held to be meant by legal interest, 17 & 18 Vict. c. 90, § 3, Fife v. Ferguson, 25th May, 1837, 16 Sh. 1038, 4th May, 1841, 2 Rob. Ap. 267. The laws against usury are repealed by 17 & 18 Vict. c. 90, § 1. This section seems to apply only where the amount of interest is either expressed or implied to be at a fixed rate, and not where the stipulation for interest is qualified by words which render the amount of interest payable uncertain. The amount payable is to be ascertained from the bill itself; but, apparently, a sum payable, with bank interest or at a rate of interest to be

ascertained extraneously, is not a sum certain in the sense of the Act. In Morgan v. Morgan, 20th Jan. 1866, 4 M. 321, it was held that a promise to pay a sum "with interest at the rate which shall be paid on money lent upon first heritable security," was not a note, as the sum payable could not be ascertained from the writing itself; and in Tennent v. Crawfurd, 12th Jan. 1878, 5 R. 435, the same rule was applied where a sum was to be paid with bank interest. Where interest at a fixed rate was promised, the sums payable were held to be certain and the writings to be notes, Vallance v. Forbes, 27th June, 1879, 6 R. 1099.

(b.) Vide Macfarlane v. Johnston, 11th June, 1864, 2 M. 1210; Davies v. Wilkinson; 2 Perry and Davidson, 256.

(c.) Where no rate is indicated, the amount payable is calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable, vide 72 (4).

(d.) The sum payable may be expressed either in words or in figures. If the bill originally only bore the amount in figures, and a different sum in words be filled in, it is competent to prove by parole, vide § 100, that the bill as issued did not contain the words which have been added, and that the addition was not made with the assent of the person sued on the bill, vide § 64. If, however, the issuer of a bill has been guilty of negligence-e.g., by leaving a blank where the sum in words has been filled in, he will be liable in a question with a holder in due course for the sum so filled in, Grahame v. Gillespie & Co., 27th Jan. 1795, M. 1453; Pagan v. Hunter & Wylie, 19th June, 1793, M. 1660. Where, however, the sum has been filled in in such a manner as to excite suspicion, the bill will be avoided even in the hands of a holder in due course. The variance between the words and the figures, may amount to notice to a holder that there has been an unauthorised alteration.

Where there is an ambiguity in the sum as written, the figures may be looked at to discover what the true sum in words is, Gordon v. Sloss, 3rd June, 1848, 10 D. 1129.

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