own order against the acceptor, it was holden, that the drawer who had indorsed the bill to the plaintiff, might be a witness to prove that the bill was given by him to the plaintiff on an usurious consideration, the witness having been released by the acceptors, or, without a release, to prove that there was usury in the discount of the bill by the witnesst. In an action by indorsee against drawer, the payee and indorser was holden" to be a competent witness to prove that the defendant had acknowledged his liability and promise to pay the bill. In an action by the indorsee against the drawer of a bill of exchange, drawn without consideration, the payee who indorsed it to the plaintiff, in payment of goods, is a competent witness to prove the consideration for the indorsement. But in an action by the indorsee against the maker of a promissory note, without original consideration, if the payee has become bankrupt, and obtained his certificate subsequently to the date of the note, he is not a competent witness for the defendanty. A bill of exchange payable to the order of the drawer, may be given in evidence under the count for money had and received, in an action brought by the drawer and payee against the acceptor2. It seemsa, that in an action by payee against acceptor, the bill would not be evidence of an account stated, in a case where the bill was drawn by a third person. Recovery of Interest.-On bills of exchange payable at a day certain, and not carrying interest on the face of them, interest is recoverable from the day on which the bills become due. The general rule at the present day, with respect to the allowance of interest, is much narrower than it was formerly. The modern doctrine is, that interest ought to be allowed in those cases only, where there is a contract for payment of money on a certain day, as on bills of exchange and promissory notes; or where there has been an express promise to pay interest; or where, from the course of dealing between the parties, it may be inferred that this was their intention; or where it can be proved that interest has been actually made of the moneyb. Hence upon a mere simple con tract of money lent, without an agreement for payment of the principal at a certain time, or for interest to run immediately, or under special circumstances, whence a contract for interest may be inferred, interest is not allowable. In a contract for the sale of goods, although a particular time be limited for payment of the price, yet the vendor is not entitled to interest on the price from that timed. But where the goods are to be paid for by a bill, interest is recoverable from the time when the bill, if given, would have become due, even in an action for goods sold and delivered. Marshall v. Poole, 13 East, 98. Porter v. Palsgrave, 2 Campb. 472. And in such cases interest will be allowed, although the defendant has not accepted the goods, in an action for not accepting the goods. Boyce v. Warburton, 2 Campb. 480. Bankers cannot charge interest upon interest upon money advanced by them without an express contract for that purpose. Dawes v. Pinner, 2 Campb. 486. Bill was drawn at Barbadoes on the 8th February, 1809, on a house in London, payable to the plaintiff at sixty days sight: the bill was refused acceptance on the 17th April, 1809, and was afterwards presented for payment on the 19th June following. Lord Ellenborough left the question, from what period the interest was to be calculated, to the special jury, who said that the holder of the bill was entitled to 107. per cent. on the principal, as damages, and that interest was to be allowed only from the time when the bill was presented for payment; but in a subsequent case, when the holder did not claim any per centage upon the principal as damages, he was allowed interest from the time the bill was dishonoured for non-acceptance. The drawer of a bill which is dishonoured by the acceptor, is not liable to pay interest for the time which elapses between the day whereon the bill becomes due, and the day when the drawer receives notice of the dishonourg. By stat. 3 & 4 W. 4. c. 42. s. 28. "Upon all debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, c Calton v. Bragg, 15 East, 223. Shaw v. Picton, 4 B. and C. 723. Page v. Newman, 9 B. and C. 378. d Gordon v. Swan, 2 Campb. 429. 12 East, 419. e Gantt v. Mackenzie, 3 Campb. 51. or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment; provided that interest shall be payable in all cases in which it is now payable by law." Formerly interest was computed from the day on which the principal became due, to the time of commencing the action; but, according to Robinson v. Bland, 2 Burr. 1085. interest ought to be carried down to the day on which judgment is signed. It must be observed, that in Blaney v. Hendrick, 3 Wil. 205. 2 Bl. R. 761. S. C. where it was holden, that in assumpsit on an account stated between merchant and merchant, the jury, on the execution of the writ of inquiry, might give interest from the day the account was stated, the interest was carried down to the time of bringing the action according to Wilson's Report, and down to the time of the inquisition, according to Blackstone's Report. This period for the computation of interest was recognized by Buller, J. in Frith v. Leroux, 2 T. R. 58, where that learned judge said, that on debts carrying interest, the jury are now directed to give interest in damages up to the day on which judgment may be signed. And when a defendant sued upon a security carrying interest, pays money into court, sufficient to cover the principal with interest down to the commencement of the action, but not to the time of paying in the money, the plaintiff may proceed; and a jury, on trial, is bound to give him damages for the interest accruing between the commencement of the action and the payment into court. Upon promissory notes payable upon demand, interest is due only from the time of the demand; but upon promissory notes payable at a certain day, interest is due from that day, though there be no demand; because the person who is to pay is in this case bound to find out the other, and pay it at the day. On a note payable on demand where there is no proof of any agreement for interest, the plaintiff is only entitled to interest from the day of issuing the writ of summons. Where money due on a balance of accounts is awarded to be paid on a particular day, and at a particular place, if duly demanded there on the day, it carries interest from that day1. h Kidd v. Walker, 2 B. & Ad. 705. i Per Cur. Brocket v. Archer, M. 6. Geo. 1. k Pierce v. Fothergill, 2 Bingh. N. C. 1 Pinhorn v. Tuckington, 3 Campb. 468. See Swinford v. Burn, Gow's N. P. C. 8. Where the terms of a promissory note are, that it shall be payable by instalments, and on failure of payment of any instalment the whole is to become due, interest becomes payable from the time of the first default. Under a particular of the plaintiff's demand", stating that the action was brought to recover the amount of a note, interest (although not claimed eo nomine in the particular,) is recoverable, as arising out of the principal demanded by the particular. The particular is now appended to the record, pursuant to a rule of court, and it is not necessary to prove the delivery of it to defendant. IX. Of the Nature of a Promissory Note-Stat. 3 and 4 Ann. c. 9. 8. 1. placing Promissory Notes on the footing of Inland Bills of Exchange-What are negotiable Notes within the Statute Of Bankers' Notes -Joint and several Notes-Consideration-Stamp. A PROMISSORY note is a promise in writing to pay to A. or order, or to A. or bearer, a sum of money, either, at sight, or at a certain time after sight, or after date, or on demand. It having been holden, in the case of Clerk v. Martin, Salk. 129, and in other cases, that the payee, and in Buller v. Crips, 6 Mod. 29. that the indorsee of a promissory note, payable to order, could not maintain an action against the maker thereof, such note not being within the custom of merchants; it was for the purpose of encouraging trade and commerce, by permitting promissory notes to be negotiated in like manner as inland bills of exchange, enacted, by stat. 3 and 4 Ann. c. 9. s. 1. "That all notes (17) in writing, made and signed m Blake v. Lawrence, 4 Esp. N. P. C. 147. Ellenborough, C. J. n S. C. o Macarthy v. Smith, 8 Bingh. 145. (17) In Pollard v. Herries, 3 Bos. and Pul. 335. an action was brought on a promissory note made at Paris, and payable there or in London. The plaintiff recovered and no objection was made on the ground of its being a foreign note. In Houriet v. Morris, 3 Campb. 303, an action was brought on a promissory note made at Paris, and the plaintiff recovered. The place of date was not mentioned in the declaration; but Lord Ellenborough held the omission to be immate (18) by any person or person, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant, or trader, (19) usually intrusted by them to sign sueh notes for them, whereby such person, &c. or their servant or agent, promise to pay to any other person or persons, body politic and corporate, or order or bearer, the money mentioned in such note, shall be construed to be, by virtue thereof, due and payable to such person, &c. to whom the same is made payable: and also such note, payable to any person, &c. or order, shall be assignable or indorsable over in the same manner as inland bills of exchange are, or may be, by the custom of merchants; and the person, &c. to whom the money is payable may maintain an action for the same in such manner as he might upon any inland bills of exchange, made according to the custom of merchants; and the person, &c. to whom such note is indorsed or assigned, may maintain an action, either against the person, &c. who or whose servant or agent signed such note, or against any of the persons who indorsed the same, as in cases of inland bills of exchange, and the plaintiff shall recover damages and costs of suit; and in case of nonsuit or verdict against plaintiff, defendant shall recover The foregoing statute being a remedial law, and made for the encouragement of trade and commerce, the courts have construed it liberally. Hence a note promising to account with J. S. or order, has been construed as a promise to pay rial. And in Milne v. Graham, 1 B. and C. 192. it was expressly determined that this statute extends to notes made in a foreign country. The note on which the question was raised, was made at Dundee in Scotland. See also Bentley v. Northouse, M. and Malk. 66. S. P. Per Lord Tenterden, C. J. in an action by indorsee against maker of a promissory note made in Scotland. And in De La Chaumette v. Bank of England, 2 B. and Ad. 385. it was holden, that a promissory note payable to bearer made in England was transferable by delivery at Paris. (18) Declaration that defendant made a note, et manu sud proprid scripsit. It was objected that since this statute, plaintiff should have averred that defendant signed the note; but the court held it to be well enough, because laid to be written with his own hand. Taylor v. Dobbins, 1 Str. 399. S. P. on demurrer. Elliott v. Cooper, Lord Raym. 1376. (19) The cases enumerated here are instances only. . Per Lord Lyndhurst, C. B. Dickenson v. Teague, 4 Tyrw. 453. |