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, 87. 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 allow 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 At present, cash notes are seldom made, except by country bankers, their use having been superseded by the introduction of checks.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. joint note of A. and B. although given to secure a debt for which A. and B. were jointly liablem. 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. Defendant gave in evidence an agreement in writing, entered into by plaintiff with the assignees of Stoddart, then a bankrupt, to receive from them 6007. in lieu of 8831. actually due from the bankrupt on this note (which was for 1007.) 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 107.4 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 m Siffkin v. Walker and another, 2 Campb. 308. Emly v. Lye, B. R. H. 52 G. 3. S. P. n Rees v. Abbott, Cowp. 832. o Per Buller, J. in Rees v. Abbott, Cowp. 832. p Garrett v. Jull, B. R. M. 22 G. 3. MS. cited by Parke, J. in Price v. Edmunds, 10 B. and C. 582. q Jackson v. Warwick, 7 T. R. 121. 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 not 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. gamingt 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 r Mann v. Lent, 10 B. and C. 877. x Per three judges, Heath v. Sansom, to cases where the note has been obtained by fraud or felony, or duress, which throw suspicion on holder's title. "I am by no means satisfied that the same rule can be applied to all cases where the note has been given without consideration. The mere fact of want of consideration between maker and payee, affords no inference that the holder received the note mala fide, or without consideration." y Geary v. Physic, 5 B. and C. 234. hits against defendant in a lottery insurance; Kenyon, C. J. was of opinion, that the plaintiff was entitled to recover, observing, that the innocent indorsee of a gaming note, or note given on an usurious contract, could not recover, but that in no other case could the innocent indorsee be deprived of his remedy on the note; and that a contrary determination would shake paper credit to the foundation. A person who, at the request of the holder of a note, has put his name upon it, and in consequence thereof has been obliged to pay the contents to a bona fide holder, may recover the money paid from any person whose name is on the note, although he knew that the note was originally given for an illegal consideration, viz. for premiums for the insurance of tickets in the lottery a Stamp. Every promissory note must be duly stamped, that is, with a stamp of the proper value and proper denomination. A promissory note, given at the time when the 31 G. 3. c. 25, was the only statute regulating the stamp-duty on promissory notes, was holden not available in law, because it was stamped with a receipt stamp, although it was of equal value with that required for a promissory note. For the amount of the stamp duties on promissory notes, see stat. 55 Geo. 3, c. 184, ante, p. 310. For the statutes regulating notes given for a less sum than five pounds, see Chitty on Bills, Appendix, sect. 8, ed. 2nd. A bill was, in fact, drawn on the 21st day of December, for 217., payable two months after date, but on the face of it purported to bear date on the 31st; it was holden to require only a stamp of 28. which is imposed by 55 G. 3. c. 184, on bills for that sum, not exceeding two months after date. The word "date," as there used, means the period of payment expressed on the face of the bill. A promissory note of 401., payable to bearer generally, and therefore, in law, payable on demand, is within the first class of promissory notes in schedule, part 1, to the 55 G. 3. c. 184, and requires a 58. stamp. A promissory note, payable to A. B. generally, is not one payable to bearer on demand, and re-issuable within this first class; but a note payable otherwise than to bearer on demand, (not re-issuable,) within z Winstanley v. Bowden, Middx. Sittings after M. T. 41 G. 3. B. R. MSS. a Seddons v. Stratford, London Sittings after T. T. 34 G. 3. Kenyon, C. J. Peake's N. P. C. 215. b Chamberlain v. Porter, 1 Bos. and Pul. N. R. 30. c 15 G. 3. c. 51; 17 G. 3. c. 30; 37 G. d Upstone v. Marchant, 2 B. and C. 10, class 2. So a promissory note made for payment of 201. to B. on demands. An action cannot be supported upon the common money counts against one of the makers of a promissory note, who signed it as surety only for the other maker. Of the pleadings under the new rules, see ante, p. 370. X. Of the Time when a Note ought to be presented for Payment. PAYMENT must be demanded within a reasonable time after the note becomes due. Whether a note has been presented for payment within a reasonable time is a question of law, but dependent on facts, viz. the situation of the parties, their places of abode, and the facility of communication between them. On promissory notes payable at a certain time after date, or after sight, three days' grace are allowed: consequently, payment of such notes ought not to be demanded until the last of the three days, unless it happen to be a Sunday, or a great holiday, in which case payment ought to be demanded on the next preceding day. The three days of grace are computed exclusively of the day on which the payment is by the terms of the note to be made. It has not been determined solemnly, whether days of grace are to be allowed on notes payable at sighti. They are not allowed on notes payable on demand. Where a note is made payable at a month or months after date, the computation must be (contrary to the general rule of law) by calendar and not by lunar months. Where a note is in the hands of an indorser, and he demands payment thereof from the maker, who refuses or omits to pay the same, notice of such refusal or default ought to be given by the indorsee himselfk to the prior indorser or indorsers (if more than one) within a reasonable time; otherwise the indorsers will be discharged. Action against defendant, as indorser of this note, "one month after date, I pro g Dixon v. Chambers, 1 C. M. and R. 845; 5 Tyr. 502; 1 Gale, 14; overruling Keates v. Whieldon, 8 B. and C. 7. h Darbishire v. Parker, 6 East, 3. i See this question discussed in Chitty's Treatise on Bills, p. 195, ed. 2nd. k But see ante, p. 332. 1 Anderson v. George, London Sittings after Trin. T. 1757, coram Lord Mansfield, C. J. MSS. |