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3. It must not be payable out of a particular fund; which may or may not be productive. Statement of the consideration, however, for which a note was made, will not vitiate it. On this principlex, a promissory note to pay a sum of money three months after date, for value received of the premises in Rosemary Lane, late in the possession of T. R. was holden a good note within the statute. In the following cases the principle before laid down was recognised, but the notes were adjudged good. A promissory note was given to an infanty, payable when he should come of age, viz. on such a day in such a year; this was holden good; for, Per Denison, J. here is no condition or uncertainty, but it is to be paid certainly and at all events, only the time of payment is postponed. So where plaintiff declared in the first count on a promissory note?, dated 27th May, 1732, whereby defendant promised to pay H. D. or order 150 guineas, ten days after the death of his father John Cooke, for value received, which note, after the death of the father (which was laid to be the 2nd April, 1741,) was duly indorsed by D. to plaintiff; and in the second count, on a promissory note, dated 15th July, 1732, whereby defendant promised to pay H. D. or order, six weeks after the death of his father, 50 guineas, for value received, the like indorsement laid after the death of the father as before ; after a general verdict for plaintiff on both notes, it was insisted for defendant, in arrest of judgment, that these notes were not within the statute 3 and 4 Ann, c. 9. After three argumentsa, Willes, C. J. delivered the opinion of the court in favour of the plaintiff, on the ground that the notes did not depend on any contingency; that there was a certain promise to pay at the time of giving the notes, and the money by virtue thereof would become due and payable one time or other, though it was uncertain when that time would come ; that there was not any weight in the objection that the maker might have died before his father, in which case the notes would have been of no value, because the same might be said of any note payable at a distant time, that the maker might die worth nothing before the note became payable. He added, that the court thought that the averment of the death of the father before the indorsement did not make alteration, because they were of opinion, that if the notes were not within the statute ab initio, they could not be made so by any subsequent contingency. So where the note was to pay

any

x Burchell v. Slocock, Lord Raym.

1545, cited by Kenyon, C. J.6 T. R.

124. y Goss v. Nelson, 1 Burr. 226.

z Colehan v. Cooke, Willes, 393. Ar

firmed on error in Str. 1217. a See Str. 1217.

within a certain time after such a ship was paid offe; it was holden good; because the ship would certainly be paid off one time or other. In Strange's report of this case, 1 Str. p. 24, the opinion of the court is thus given: “The paying off the ship is a thing of a public nature, and this is negotiable as a promissory note.". I have stated the case as it was cited by Willes, C. J. delivering the opinion of the court in Colehan v. Cooke, Willes, 399. See also Mr. Hume Campbell's argument in Evans v. Underwood, I Wils. 263, where, in citing this case, he states the opinion of the court to have been that the note was within the statute and negotiable, because the paying of the ship was morally certain. The same point was decided by Hardwicke, C. J. in Lewis v. Orde, Middx. Sittings, 8 G. 2. The note was in this form : “I promise to pay J. S. £11 at the payment of the ship Devonshire, for vasue received.” Willes, C. J. in Colehan v. Cooke, Willes, 399, says, “this case was determined on the same reason as Andrews v. Franklin, viz. that the ship would certainly be paid off one time or other, which seems to be the true reason;" but in the report of Lewis v. Orde, Dict. Trade and Com. 261, copied by Cunningham, p. 127, of Law of Bills and Notes, 2nd ed. 1761, Lord Hardwicke is made to say, “That as to the contingency of the payment, the subsequent act of the payment of the ship makes it certain, and therefore, though not a lien ab initio, yet sufficiently so, and within the statute, by the fact happening after; and in a MS. note, in the possession of the editor, Lord Hardwicke is made to say, “ as to the time, this note is certainly within the statute, if it had been made payable at any precise future day; and if it be uncertain at first, but referred to a subsequent fact to make it certain, when that fact happens (as in this case it was averred that the ship Devonshire was paid,) it is as much reduced to a certainty as if the day had been mentioned at first. But if the promise is to pay out of any particular fund, it is not a personal lien, and therefore not within the statute.” It may be observed, that this reason clashes with the opinion of the court in Colehan v. Cooke, Willes, 399, where it was said, that if the notes were not within the statute ab initio, they should not be made so by any subsequent contingency, and with the decision in Carlos v. Fancourt, 5 T. R. 482, and in Hill v. Halford, 2 Bos. and Pul. 413, in which cases the events on which the notes were to become payable were averred in the declarations to have taken place, and yet the notes were holden not to be good. See also Kingston v.

Andrews v. Franklin, H. 3 Geo. 1. B. R.

2 C

VOL. I.

Long, Bayley, 71; 4 Doug. 9; where it was holden by the court, that if an instrument was not a bill of exchange in its creation, it could never become so afterwards. To the foregoing cases of Andrews v. Franklin, and Lewis v. Orde, may be added that of Evans v. Underwoodh, where the note was to pay A. or order, 8l. upon the receipt of his the said A.'s wages, due from his Majesty's ship the Suffolk, it being in full for his wages and prize-money, and short-allowance money, for the said ship; the declaration stated an indorsement by A. and averred that the defendant received the said wages from the said ship. After verdict for plaintiff, on motion in arrest of judgment, the case of Andrews v. Franklin was mentioned, which Mr. Ford, for the defendant, said had never been determined. The court said, that they would look into the case, and see whether it had been determined. The reporter adds, that the court inclined to give judgment for the plaintiff, and after looking into the case, did so, ut audivi. In Beardesley v. Baldwin, E. 15 G. 2. B. R. MS. the court said, that as to Andrews v. Franklin, if it ever was determined, which they could not find, it must have been decided on the certainty observed in the return of ships, and which must be looked upon as an event in itself not contingent. See further on this subject, Houssoullier v. Hartsinck, 7 T. R. 733.

Where an instrument is made in terms so ambiguous as to make it doubtful, whether it be a bill of exchange or a promissory note, the law will allowi the holder, at his option, as against the maker of the instrument, to treat it either as a promissory note or as a bill of exchange.

Bankers' cash notes, or goldsmiths' notesk, as they were formerly called, goldsmiths at that time being bankers, are promissory notes given by bankers, payable to order or bearer, on demand, and are stated as such in pleading. They are considered as cash, are transferable by delivery, but may be indorsed, in which case they may be declared on as a bill of exchange against indorser. At present, cash notes are seldom made, except by country bankers, their use having been superseded by the introduction of checks.

Joint and several Notes.A note beginning, “I promise to pay," and signed by two or more persons, is several as well as joint?. If a promissory note appears on the face of it to be the separate note of A. only, it cannot be declared on as the

h 1 Wils. 262.
i Edis v. Bury, 6 B. and C. 433.
k Chitty, p. 239. ed. 2nd.

1 March v. Ward, Peake's N. P. C.

130.

dant gave

joint note of A. and B. although given to secure a debt for which A. and B. were jointly liable m.

In an action by A. against B. upon a promissory note", it was stated in the declaration, that B. and another, jointly or severally, promised to pay it. It was holden that the declaration was good; for or was synonimous to and. They both promised that they or one of them should pay; consequently both and each were liable in solidum. If an action is brought on a joint note", and some of the persons making the note are not made defendants, advantage can be taken of the omission by plea in abatement only. An action was brought against defendant only, on a joint and several note made by defendant and one StoddartP. Plea, non-assumpsit. Defen

in evidence an agreement in writing, entered into by plaintiff with the assignees of Stoddart, then a bankrupt, to receive from them 6001. in lieu of 8831. actually due from the bankrupt on this note (which was for 1001.) and on other transactions; and that defendant was only surety for Stoddart. Defendant obtained a verdict. On motion to set it aside, it was resisted on the part of the defendant, on the ground that the agreement put an end to the plaintiff's recovery on the note, that the principal could not be discharged without discharging the surety also. On the part of the plaintiff it was urged, that it was not the meaning of the agreement that defendant should be discharged. But per Lord Mansfield, C. J. the plaintiff was party to the agreement, and we cannot receive parol evidence to explain it. Whatever might be the intention of the parties, the principal cannot be released without its operating for the benefit of the surety. Rule discharged.

Consideration. It will be presumed, that the note has been given for a good and valuable consideration until the contrary appear.

As between the immediate parties, want or illegality of consideration may be insisted on as a defence. In an action by the payee against the maker of a promissory note for 101.9 which had been given by the defendant as an apprentice fee with his son to the plaintiff, to whom the son was bound; it appeared, at the trial, that in the indentures of apprenticeship no mention had been made of this premium having been given with the apprentice, nor was there any stamp thereon in proportion to the value, as required by stat. 8 Ann, c. 9, in default of which, by the 39th section of the stat. the indentures are declared to be void. The apprentice remained some part of his time with his master, and then absconded. It was objected, on the part of the defendant, that the indentures being void, the consideration of the note had failed. To this it was answered, that the avoiding of the indentures could not collaterally affect this note; but that at all events it was sufficient if there were any consideration to sustain it; and here the master had provided board and lodging for some time for the apprentice. But Lawrence, J. was of opinion, that the consideration was entire, and that it had wholly failed. The Court of King's Bench concurred in opinion with the learned judge. But it is otherwise, if the consideration has notr wholly failed. In an action by payee of a note expressed to be “in consideration of the payee's care and medical attendance bestowed on the maker," it was holdens, that evidence was admissible to show the consideration to have been medicines furnished and services performed as an apothecary; and if that was proved, that the plaintiff could not recover, without showing that he had obtained his certificate under 55 Geo. 3. c. 194. s. 21. Where the action is brought not as between immediate parties, and the plaintiff is a bona fide holder for a valuable consideration, without notice, such illegal consideration only as makes the note void ab initio, viz. gaming and usury, can be alleged in bar to the action. Where a note has been given under such circumstances that the payee cannot recover on it, the indorsee must prove that he became so for a valuable consideration'; although no notice be given to him to produce such evidence. It is not necessary that the indorsement should be written with ink; it may be with a pencily. In an action by the indorsee against the maker of a promissory note, the defence insisted on was, that the note had been given for

m Siffkin v. Walker and another, 2 p Garrett v. Jull, B. R. M. 22 G. 3.

Campb. 308. Emly v. Lye, B. R. H. MS, cited by Parke, J. in Price v. 52 G. 3. S. P.

Edmunds, 10 B. and C. 582. n Rees v. Abbott, Cowp. 832.

q Jackson v. Warwick, 7 T. R. 121. o Per Buller, J. in Rees v. Abbott, Cowp. 832.

I Mann v. Lent, 10 B. and C. 877. to cases where the note has been ob

See also Obbard v. Betham, M. tained by fraud or felony, or duress,

and Malk. 483, and ante, p. 168. n. which throw suspicion on holder's $ Blogg v. Pinkers, I R. and M. 125. title. “I am by no means satisfied t Stat. 9 Ann, c. 4. 8. 1. ante, p. 321. that the same rule can be applied to

and Bowyer v. Bampton, Str. 1155. all cases where the note has been u 12 Ann, stat. 2. c. 16. s. 1. ante, p. given without consideration. The

322. Lowe v. Waller, Doug. 735. mere fact of want of consideration But see stat. 58 Geo. 3. c. 93. ante, between maker and payee, affords no

inference that the holder received x Per three judges, Heath v. Sansom, the note mala fide, or without consi

2 B. and Ad. 297, cited by Tindal, deration." C. J. Bassett v. Dodgin, 10 Bingh. y Gearý v. Physic, 5 B. and C. 234. 43. But Parke, J. confines the rule

P. 322.

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