tory (e). Therefore, one of several joint, or joint and several makers of a note, who pays the whole, may maintain an action against another for contribution (ƒ); and he may now, on giving a proper indemnity, sue his companion on the instrument in the creditor's name, and his own payment shall not be pleadable in bar (g). CHAPTER A bank note is a promissory note, made by a banker, Bank notes. payable to bearer on demand, and intended to circulate as money (h). The term bank note is sometimes used indiscriminately Bank of England for the note of a country bank, or the note of the Governor notes. and Company of the Bank of England; but, in law books, 66 a bank note is commonly taken to mean a Bank of England note. "Bank notes," says Lord Mansfield, are not goods, not securities nor documents for debts, nor are they so esteemed; but are treated as money, as cash, in the ordinary course and transactions of business, by the general consent of mankind, which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. They pass by a will which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So, on bankruptcies, they cannot be followed as identical, and distinguishable from money, but are always considered as money or cash" (i). Like money, they cannot, at common law, be taken in execution (), but may now be taken by virtue of the stat. 1 & 2 Vict. c. 110, s. 12. 289; Holmes v. Williamson, 6 M. & S. 158; Edgar v. Knapp, 6 Scott's N. R. 707; 5 M. & G. 753, S. C. (e) Prior v. Henbrow, 8 M. & W.882. (f) As to contribution between principal and surety, and between co-sureties, see the Chapter on PRINCIPAL and SURETY. (g) 19 & 20 Vict. c. 97, s. 5; Batchelor v. Lawrence, 30 L. J., C. P. 39; 9 C. B., N. S. 543, S. C. (h) As to the power of the Bank of England and other banks to issue promissory notes, see the (i) Miller v. Race, 1 Burr. (j) Francis v. Nash, Rep. temp. Hardwicke, 53; Knight v. Criddle, 9 East, 48; Armistead v. Philpot, 1 Dougl. 219; Fieldhouse v. Croft, 4 East, 510. CHAPTER When a legal tender. Country bank notes. When a legal tender. When money had and received will lie for them. Of the contracting words in a promissory note. Gold coin was formerly the only legal tender above a certain amount (k); bank notes were, nevertheless, a good tender, unless objected to on that account (1); but it is enacted, by 3 & 4 Will. 4, c. 98, s. 6, that Bank of England notes shall be a legal tender for all sums above 5l., except at the Bank of England or its branches. Formerly, money was kept with goldsmiths, who, about the year 1670, introduced, as receipts for deposits, promissory notes payable to bearer, called Goldsmiths' Notes; the assignable quality of these notes was strenuously denied by Lord Chief Justice Holt, in the reign of Queen Anne. At length, the stat. 3 & 4 Anne, c. 9, made them assignable, like bills. Checks on bankers have now superseded goldsmiths' notes, in London; but bankers' cash notes, or, as they were formerly called, shop notes, and country bank notes, are now what goldsmiths' notes were formerly. Country bank notes are also a legal tender, unless objected to, and are considered as cash (m). Assumpsit for money had and received will lie for country bank notes and checks which have been treated as money (n), but not otherwise (o); for it has been held, that an action for money had and received will not lie against the finder of lost notes unless they have been turned into money, or treated by the defendant as money. No precise words of contract are essential in a promissory note, provided they amount in legal effect to an uncon ditional promise to pay. Thus, "I promise to account with A. B. or order for 50l., value received by me," has been held a good note within the statute (p). So, "I do acknowledge myself to be indebted to A. in 1007., to be paid on demand, for value received," was, after solemn argument, held to be a good note within the statute, the words "to be paid" amounting to a promise to pay; the Court observing, (k) 56 Geo. 3, c. 68, s. 11. (1) Wright v. Reed, 3 T. R. 554; Grigby v. Oakes, 2 B. & P. 526; Brown v. Saul, 4 Esp. 267. (m) Chitty, 351, 2; Owenson v. Morse, 7 T. R. 64; Ward v. Evans, 2 Ld. Raym. 928; Tiley v. Coursier, K. B. 1817; overruling Mills v. Stafford, Peake, N. P. 240, n.; Lockyer v. Jones, Peake, N. P. 240, n.; Polglass v. Oliver, 2 C. & J. 15; 2 Tyr. 89, (n) Pickard v. Bankes, 13 (p) Morris v. Lee, 2 Ld. Raym. 1396; 1 Stra. 629; 8 Mod. 362, S. C. that the same words in a lease would amount to a covenant to pay rent (q). And where, for an executed consideration, a note was given, expressed to be "for 201. borrowed and received," but at the end were the words, "which I promise never to pay," Lord Macclesfield rejected the word never (r). For a contract ought to be expounded in that sense in which the party making it apprehended that the other party understood it. If there be no words amounting to a promise, the instrument is merely evidence of a debt, and may be received as such between the original parties (s). Such is the common memorandum I O U (t). (q) Casborne v. Dutton, S. N. P. 401; Brooks v. Elkins, 2 M. & W. 74. But in Horne v. Redfearn (4 Bing. N. C. 433; 6 Scott, 260, S. C.), the following instrument was held not to be a promissory note:-"I have received the 201. which I borrowed of you, and I have to be accountable for the same sum with interest.". In Jarris v. Wilkins, 7 M. & W. 410, the following instrument was held to be a guarantie, and not a note:-" Sept. 11, 1839. I undertake to pay to Mr. Robert Jarvis the sum of 67. 4s. for a suit of clothes ordered by Daniel Page." The Court observed that the expression "ordered" showed that the consideration was executory. "I, R. J. M., owe Mrs. E. the sum of 67., which is to be paid by instalments, for rent. Signed, R. J. M." Held not to be a promissory note, as no time was stipulated for the payment of the instalments. Moffatt v. Edwards, 1 Car. & M. 16. "Memo. Mr. Sibree has this day deposited with me 5007. on the sale of 10,300l. 37. per cent. Spanish, to be returned on demand." Held not to be a promissory note. Sibree v. Tripp, 15 M. & W. 23. "Borrowed of Mr. J. White the sum of 2007. to account for on behalf of the Alliance Club at two months' notice if required," was held not to be a note. White v. North, 3 Exch. Rep. 689. 'Borrowed, this day, of Mr. John Hyne, Stonehouse, the sum of 1001. for one or two months; cheque 1001. on the Naval Bank," was held to be a simple acknowledgment, and not a note or agreement. Hyne v. Dewdney, 21 L. J., Q. B. 278. The following instrument was held to be a promissory note :— "John Mason, 14th Feb. 1836, borrowed of Mary Ann Mason, his sister, the sum of 147. in cash, a loan, in promise of payment of which I am truly thankful for.” Ellis v. Mason, 7 Dowl. P. C. 598. A letter in this form is a promissory note: -"Gentlemen, I have received the imperfect books, which, together with the costs overpaid on the settlement of your account, amounts to 801. 78., which sum I will pay you within two years from this date. I am, Gentlemen, your obedient servant, "Thos. Williams." Wheatley v. Williams, 1 M. & W. 533. A promise to pay or cause to be paid is a good note. Dixon v. Nuttal, 6 Č. & P. 320; 1 C., M. & R. 307. (r) 2 Atkyns, 32; Allen v. Marson, 4 Camp. 115; Bayley, 5 Ed. 5. (8) Waynam v. Bend, 1 Camp. 175. (t) Israel v. Israel, 1 Camp. 499; Fisher v. Leslie, 1 Esp. 426; Childers v. Boulnois, D. & R., N. P. 8. But see Guy v. Harris, Chit. 526, where Lord Eldon held such an instrument to be a pro CHAPTER CHAPTER Other matters contained in a note.! A promissory note is not the less a note, because it contains a recital that the maker has deposited title deeds with the payee as a collateral security (u), or because it refers to an agreement where it does not appear that the agreement qualifies the note (v). But an agreement to give further security in future would invalidate the instrument as a promissory note (x). missory note. But it clearly is not (u) Wise v. Charlton, 4 A. & E. v. Stirling, 3 E. & B. 841. But such a note will generally require a mortgage stamp, which may, however, be impressed on the note after it is made. See further Chap. XXIII. on INTEREST. (v) Jury v. Baker, 28 L. J., Q. B. 255; E. B. & E. 459, S. C. (a) See Chap. VII. on IRREGULAR INSTRUMENTS. thib A CHECK on a banker is, in legal effect, an inland bill of What instruexchange, drawn on a banker, payable to bearer on de- ments are checks. mand (a). A check is consequently subject, in general, to the rules which regulate the rights and liabilities of parties to bills of exchange. Checks on bankers, however, have of late years come into use so frequent, as commonly to supersede in payments of any considerable amount, not only gold and silver coin, but bank notes themselves. With their universal use have grown up certain usages peculiar to (a) Keene v. Beard, 8 C. B., N. S. 372. The 16 & 17 Vict. c. 59, introduces a new sort of draft on a banker, payable to order on demand, exempting the banker from liability if the original or any sub- |