notes.' Thus, if A., B. & C. make a joint and several note, there is a several note of each, and the joint note of all-in all four notes. The joint note may be valid, though

the several notes are void.3

$95. Two or more drawers.-The drawer of a bill is generally a single person, or a copartnership firm, or a corporation. But two or more persons may unite in drawing a bill, and unless they are partners, each is entitled to require demand and notice. And they may make the bill payable to their joint order, or to the order of either of them, or to a third person or order. Sometimes another person unites with the drawer as a surety, and such person is called a "surety-drawer." Where several persons unite in drawing a bill of exchange upon a person in whose hands they have no funds, and the bill is accepted and paid, all of them are bound to the acceptor, and neither one of them can show that he signed as surety for the others, and that the drawee knew the fact when he accepted the bill." The doctrine has been carried farther, and it has been held that if A. and B. draw on C. without having funds in his hands, and B. signs himself surety, both must be considered as drawers to all the parties to the bill, as well to the acceptor as the payee, for the acceptor may have been induced to accept the bill quite as much as the payee or other holder to take it, because B., as surety of A., was liable to him for payment in the character of joint drawers."

In New York a different view is taken, on the ground that the liability of a joint drawer extends to the payee or subsequent holder alone, and even if he draws the bill, with

2

'Fletcher v. Dyte, 2 T. R., 6; Byles, 78. King v. Houre, 13 M. & W., 565. McClae v. Sutherland, 3 E. & B. 1 (77 E. C. L. R.); Byles (Sharswood's ed.), [*8], 79.

4

332.

Suydam v. Westfall, 4 Hill, 211; 2 Denio, 205; McMean v. Little, 3 Baxter

'McMean v. Little, 3 Baxter, 332.

Suydam v. Westfall, 4 Hill, 211; 2 Denio, 205.

'Swilley v. Lyon, 18 Ala., 558; Story on Bills, § 420.

the understanding that he is to be liable to the acceptor, such a contract would be a parol promise to pay the debt of another, and void under the statute of frauds.1 view does not seem to us tenable.2

But this.

§ 95a. In an English case, M. and P. drew a bill payable to their own order on R. B., who accepted it, and J. B. indorsed it with the view of becoming surety for R. B. to the drawer. Action was brought against J. B. as an indorser, and also as a drawer. He was held bound in the latter character. Shee, J., said: "It is alleged that the defendant indorsed,' which as a stranger he could not do. But the defendant here may be treated as drawer; that is, as guaranteeing the payment of the bill by the acceptor."

"3

§ 96. Sixthly: as to the drawee.-A bill of exchange being an open letter of request from the drawer to a third person, supposed to be under obligation to accept the bill, should be regularly addressed to such person by his Christian name and surname, and also by a designation of his place of residence; and if it is addressed to a firm, the name of the firm should be expressed in the address.

Such, at least, is requisite to perfect the bill in a proper and business-like manner; and without such accuracy in the address, it does not appear who should be called upon to accept or pay it, or who would be justified in so doing. In an early English case, it was held that it was not necessary that the bill should have a drawee; but that case has been distinctly repudiated, and both in England and in the United States it is settled doctrine that a drawee must be pointed out. Where a bill without a drawee was sued upon it was

2

'Griffith v. Reed, 21 Wend., 502; Wing v. Terry, 5 Hill, 160.

Story on Bills, § 420; Edwards on Bills, § 376.

"Mathews v. Bloxsome, Q. B., 33 L. J. R., 209. See Penny v. Innes, 1 Cr. M,

& R., 439.

4

Byles (Sharswood's ed.) [*84], 179; Chitty on Bills (13th Am. ed.) [*164] 188; Story on Bills, § 58.

Peto v. Reynolds, 9 Exch., 410. Alderson, B., said: "With respect to the

well said: "For want of a drawee it is incomplete as a bill of exchange; and for want of a promise it appears to us incomplete as a note." 1 But the bona fide holder of a check without a drawee, which has been issued as a memorandum of indebtedness, may recover on account for money had and received.2

§ 97. Where a bill was drawn payable to the drawer's order, and there was added " Payable at No. 1 Wilmot Street, opposite the Lamb, Bethnal Green, London," and was accepted by one Milner, it was held sufficient, upon the ground that it must be considered as directed to the person residing at that house, and acceptance by the defendant was acknowledgment that he was intended as the drawee. Such a bill or any accepted bill without a drawce—is considered by many authorities as defective in its inception, but perfected by acceptance, the acceptor being estopped to

question whether this instrument is or is not a bill of exchange, the case of Regina v. Hawkes is undoubtedly in point. I must own, however, that I now think I was wrong on that occasion. The case seems to have been decided on the ground that Milner v. Gray, 8 Taunt., 739, governed it; and the fact was not adverted to, that Gray v. Milner may be thus explained: that a bill of exchange made payable at a particular place or house, is meant to be addressed to the person who resides at that place or house. Therefore, in that case, the bill was on the face of it directed to some one; and the court beld, that, inasmuch as the defendant promised to pay it, that was conclusive evidence that he was the party to whom it was addressed. But in the case of Regina v. Hawkes, the instrument was addressed to no one." See also Reynolds v. Peto, 11 Exch., 418; Watrous v. Hallbrook, 39 Texas, 572. In Ball v. Allen, 15 Mass., 435, Parker, C. J., says: "The mere possession of a paper drawn in the form of an order, there being no drawee in existence, we think, can not entitle the possessor to an action in any form, for the paper may have been carelessly dealt with as being imperfect, and may have come to the possessor by finding. It is enough for the purpose of justice, that the holder of such a paper may entitle himself to recover, merely by showing that he paid for it, or that he came otherwise fairly by it; for it can rarely happen that he will be unable to produce the person for whom he received it. If the circumstances are such as induce him to decline producing evidence of the manner in which the paper came to him, no probable harm will be the result of his loss of the money.' Story on Bills, § 58; 1 Parsons N. & B., 61; 2 Robinson's Practice (new ed.), 144.

1 Forward v. Thompson, 12 Upper Canada Q. B. R., 103 Draper, J. See § 97. Ellis v. Wheeler, 3 Pick., 19; see Ball v. Allen, supra.

3

Gray v. Milner, 8 Taunt., 739; 3 Moore, 90. Dallas, C. J., said the instru ment was clearly a bill of exchange; and that, "it being directed to a particular place, could only mean to the person who resided there; and that the defendant, by accepting it, acknowledged that he was the person to whom it was directed.' Cork v. Bacon, 45 Wisc., 192.

deny that he was the drawee.1 And this seems the correct doctrine. But it was regarded in the case above cited as informal, but valid. That decision, however, has been questioned. If invalid as an acceptance the paper might be treated as a note.1

§ 98. If the bill be addressed to A., or in his absence to B., it is sufficient and valid, and will bind whichever accepts as acceptor. And it has been thought that a direction to A. or B. in the alternative, would be sufficient if both were at the same place at the same time. If the bill is drawn upon A., B., and C., it may be accepted by A. and B. only, and they will be bound as acceptors, and it will be no variance to allege in the declaration that it was drawn upon A. and B., without referring to C. But if a bill is intended. to be accepted by two persons, it should be addressed to both, otherwise, though accepted by both, it will bind only the drawee as acceptor, as there can not be a series of acceptors. The drawer and drawee may be the same person, but such an instrument would be actionable without acceptance. In case of uncertainty as to the real drawee attempted to be expressed or designated, or any ambiguity in the address of the bill, then, as in all cases of written contracts, extrinsic evidence is admissible to ascertain.10

By the French and English usage, the address is uni

1 Wheeler v. Webster, 1 E. D. Smith, 3; post, § 486; Thomson on Bills, 46;. Grierson v. Sutherland, Scotch Case therein cited; Chitty on Bills, [*164], 188; I Parsons N. & B., 288-9; Benjamin's Chalmer's Digest, 50.

2

Gray v. Milner, supra; Edwards on Bills, 174.

Davis v. Clarke, 6 Q. B., 16; see also Peto v. Reynolds, supra; Story on Bills (Bennett's ed.), 58; 1 Parsons N. & B., 62.

* See §§ 131, 132, 133, 485.

Anonymous, 12 Mod., 447; Chitty, Junior, 216; Ames on B. & N., 111.

Marius on Bills, 16; Story on Bills (Bennett's ed.), § 58.

* Mountstephen v. Brooke, 1 Barn. & Ald., 224; Story on Bills, § 58.

Davis v. Clarke, 6 Ad. & El. N. S., 16; Jackson v. Hudson, 2 Camp., 447

see chapter XVIII, on Acceptance.

9

See chapter v, on Irregular, etc., Instruments.

10 Cork v. Bacon, 45 Wisc., 192; McCullough v. Wainwright, 14 Penn. St, 171; Jackson v. Sell, 11 Johns, 201.

formly at the left-hand lower corner, upon the face of the bill; but the Italians and Dutch, as it seems, write it on the back of the bill.' But it is not supposed that the place of the address is essential, if it distinctly appear what was intended.

$99. Seventhly: as to the payee.-The bill or note must point out with certainty the party who is to receive the money—that is, it must designate a payee. But the payee need not be named in person, it being sufficient if some one be indicated. Thus if the instrument be payable to A. or bearer, or to bearer, or to the holder, or to order, it is intended to mean whoever comes in lawful possession, and the holder may sue upon it. In order to make a promissory note or other obligation for the absolute payment of a sum certain, on a certain day negotiable, it is not essential that it should in terms be payable to bearer or order. Any other equivalent expressions demonstrating the intention to make it negotiable will be of equal force and validity.* Hence, if the instrument be payable to a certain person or "assigns," or to a certain corporation, or the holder, "if transferred by the signature of its President," it would be negotiable. If the note be written "due the bearer $100, which I promise to pay A. or order," it is payable not to bearer, but to A. or order.” And whenever a bill or note is payable to a certain person or order, it is the same as if expressed to be payable to the order of that person, payable to whomsoever the payee named may by indorsement order it to be paid."

8

* Mechanics' Bank v. Straiton, 3 Abbott, N. Y. App., 269; Hathwick v. Owen,

44 Miss., 803.

4

County of Wilson v. National Bank, 103 U. S. (13 Otto), 776.

' Cock v. Fellows, I Johns, 143; see post, § 102.

* Fisher v. Pomfret, 12 Mod., 125; Huling v. Hugg, 1 W. & S., 418.

9

See chapter XXI, on Transfer by Indorsement.