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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 necessaryo 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.
(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 costs.”
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.
J. S. or order, and within the meaning of the statutea. So a promissory note, payable to B.b (omitting the words “or order,”) three months after date, was holden a good note within the statute, and it was adjudged, that it might be declared on as such by the payee. So where the promise
was by A.C to pay so much to B. for a debt due from C. to B., it was holden, that it was within the statute, being an absolute promise, and every way as negotiable as if it had been generally for value received. So where the notice was in this form", "I do acknowledge that Sir A. C. has delivered to me all the bonds and notes, for which 4001. were paid to him on account of Col. S., and that Sir A. delivered to me Major G.'s receipt, and bill on me for 101.; which 10l. and 15l. 58. balance due to Sir A. I am still indebted, and do promise to pay.” On demurrer to the declaration, the note was adjudged good. So where the instrumente was, “Received of A. B. 1001., which I promise to pay on demand, with lawful interest. So where the note set forth in the declaration was, “I do acknowledge myself to be indebted to A. in £, to be paid on demand for value received.” On demurrer to the declaration, the court, after solemn argument, held that this was a good note within the statute, the words “to be paid” amounting to a promise to pay; observing that the same words in a lease would amount to a covenant to
This statute, however, extends to such notes only as contain an absolute promise to pay money at all events, (and not a promise depending upon a contingency,) and where the money at the time of the giving the note, becomes due and, payable by virtue thereof, (so are the words of the statute,) and not where it becomes due and payable by virtue of a subsequent contingency, which perhaps may never happen, in which case the money would never become payable. Before the statute of Anne, a promise to pay A. or his assigns a sum of money within a certain time after defendant should be lawfully married to E. S. was holden not to be a good note; because to pay money on such a contingency could not be called trading, and therefore not within the custom of merchants. Pearson v. Garrett, 4 Mod. 242.
a Morice v. Lea, 8 Mod. 362. I Str. c Popplewell v. Wilson, B. R. Str. 629, Lord Raym. 1396, 7.
264, on error from C. B. b Smith v. Kendal, 6 T. R. 123. S. P. d Chadwick v. Allen, Str. 706.
per. Hardw. C. J. Cunningham Bills e Green v. Davies, 4 B. and C. 235. of Ex. 127. See also Moor v. Pain, f Casborne v. Dutton, Scacc. M. 1 Geo. Ca. Temp. Hardw. 288, where Hard- 2 Mss. wicke, C. J. said this point had been g Willes, C. J. in delivering the opiruled often.
nion of the court in Colehan v. Cooke, Willes, 398.
The following notes have been adjudged not to be negotiable notes within the statute, viz.
A promise by defendant to pay to plaintiff 261.b within a month after Michaelmas, if the defendant did not pay the 461. for which the plaintiff stood engaged for his brother I. B. A promise to pay A. B. £ value receivedi, on the death of C. D., provided he leaves either of us sufficient to pay the said sum, or if we shall be otherwise able to pay it. A promise to pay A., or B. and C., £ value received k. A promise to pay money within so many days after the maker. of the note should marry! So where the promise was to A. F. £ out of the maker's money that should arise from his reversion of £ when sold, the declaration averred the sale of the reversion: yet it was holden, that the note could not be declared on as a negotiable note under the statute, because the money was to be paid only on a contingencym A similar decision was made in Hill v. Halford", 2 Bos. and Pul. 413, where a promise was to pay £ on the sale or produce, immediately when sold, of the White Hart, St. Alban's, Herts, and the goods therein, although it was averred in the declaration, that the house and goods were sold. In a case where the instrument acknowledged to have borrowed and received £ in drafts payable to the defendants at a future day, which the defendants promise to pay with interest, it it was holden that this was a special agreement, and not a promissory note; for the money was not to be paid at all, unless the drafts were honoured.o
So where the instrumentP was—“ On demand we promise
pay G. C. or order 12001. for value received in stock, &c. this being intended to stand against me, the undersigned M.P. as a set-off for that sum left me in my father's will, above my sister Ann's share, signed by T. P. (husband,) M. P. (wife.”)
Upon an instrument in the common form of a joint and several promissory note, signed by A., B., and C., there was an indorsement (written as appeared in proof, before B. and C.
h Appleby v. Biddle, B. R. H. 3 Geo. a Hill v. Halford, 2 Bos, and Pul. 1. MS.
413. (in the Exch. Ch. )on error i Roberts v. Peake, 1 Burr. 323.
from B. R. k Blanckenhagen v. Blundell, 2 B. o Williamson v. Bennett, 2 Campb. and A. 417.
417. | Beardsley v. Baldwin, Str. 1151.7 p Clarke v. Percival, 2 B. and Ad. Mod. 417. oct. ed.
660. m Carlos v. Fancourt, 5 T. R. 482.
had signed the note,) stating that the note was taken as a security for all balances, not exceeding the sum specified in the note, which A. might owe to the payee; that the note should be in force for six months, and no money liable to be called for sooner in any case: an action having been brought by the payee against B., the first count stating the note as payable on request, and a second as payable six months after date; Lord Ellenborough, C. J. held, that although the instrument possibly might have been considered as a promissory note in the hands of a bona fide holder, who had received it as such, yet as between the immediate parties it could only be considered as an agreement, for as to them the indorsement must be incorporated with the body of the note; and consequently an action could not be maintained upon it without an agreement stamp. An instrument purporting on the face of it to be a promissory note, payable absolutely for the price of goods, but having an indorsement upon it, (written before the note was signed,) stating that it was given on condition that if any dispute arose about the sale of goods, it would be void, is not a negotiable noter. Received and borrowed of A. B. £30, which I promise to pay with interest. I also promise pay
the demands of the sick club at H. in part of interest, and the remaining stock and interest to be paid on demand to the said A. B. Witness, my hand, C. D. This was holden, not to be a promissory note, for the instrument, as far as respected the contingent demand, was not a promissory note, and the transaction was entire.
2. A promissory note must be for the payment of money only. Hence on error from C. B. it was holdent, that a note to deliver up horses and a wharf, and pay money at a particular day, could not be declared on as a note within the statute. And a similar determination was madey, where the promise was to pay 3001. to A. or order, in good East India bonds. So where the promise was to pay J. S. so much money", or to render the body of J. N. to prison before such a day, the note was holden bad; because the note was not necessarily and originally for the payment of money, but by matter ex post facto became a note for payment of money only, viz. the body not being surrendered to prison.
9 Leeds v. Lancashire, 2 Campb. 205. u Moor v. Vanlute, Bull. N. P. 272. r Hartley v. Wilkinson, 4 M. and S. 25. x Smith v. Boheme, (reported as to the s Bolton v. Dugdale, 4 B. and Ad. argument,) in Gilb. R. 93, cited in
619. Worley v. Harrison, 3 Ad. and argument in Lord Raym. 1362, and Ell. 669, S. P.
1396. t Martin v. Chauntry, Str. 1271.