CHAPTER VII. OF AMBIGUOUS, CONDITIONAL (@), AND OTHERWISE A NOTE cannot of course be made by a man to himself Note payable to without more. Neither can it be made to himself and the maker. another man (b). But a note made payable to the maker's order becomes, in legal effect, when indorsed in blank, a note payable to bearer (c); and when specially indorsed, a note payable to the indorsee's order (d). instruments. If an instrument be made in terms so ambiguous that it Ambiguous is doubtful whether it be a bill of exchange or a promissory note, the holder may treat it as either, at his election (e). (a) As to the contracting words in promissory notes, see Chapter II. (b) See Moffatt v. Van Millingen, 2 B. & P. 124, n.; Mainwaring v. Newman, ibid. 120; and see Teague v. Hubbard, 8 B. & C. 345. It was formerly a doubt whether a note promising to pay to the maker's order, or to the maker or order, be a note within the statute. Such a note was sued on in Richards v. Macey, 14 M. & W. 484. It should on principle seem, when indorsed by the maker in blank, to be in legal effect a note payable to bearer. So de- (c) Browne v. De Winton, 17 (d) Gay v. Lander, 17 L. J., C. P. 287; 6 C. B. 336, S. C. (e) Peto v. Reynolds, 9 Exch. 410; Armfield v. Allport, 27 L. J., Exch. 42; Fielder v. Marshall, 30 L. J., C. P. 158; 9 C. B. (N. S.) 606, S. C.; and a Court of law, in CHAPTER VII. Thus, where for goods sold and delivered, the defendant gave the plaintiff an instrument in the following form :— London, 5th August, 1833. Three months after date I promise to pay Mr. John Bury, or order, forty-four pounds eleven shillings and five pence, value received. J. B. GRUTHEROT, 35, Montague Place, JOHN BURY. And Grutherot's name was written across the instrument as an acceptance, and Bury's name on the back as an indorsement, it was held that the plaintiff might treat the defendant Bury either as a drawer of a bill or maker of a note, and therefore was not bound to give him notice of dishonour (ƒ). So where an instrument was in the following form: 21st October, 1804. Two months after date pay to the order of John Jenkins, £78 11s., value received. At Messrs. JOHN MORSON & Co. THOMAS STEPHENS. Lord Ellenborough held that it was properly a bill of exchange, but that perhaps it might have been treated as a promissory note, at the option of the holder (g). A man may draw a bill on himself (h), and of that opinion were all the Judges of the C. P. (i). Perhaps such a bill would be good where the drawer draws on himself payable furtherance of justice and the in- (f) Edis v. Bury, 6 B. & C. (g) Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp. 115; Gray v. Milner, 8 Taunt. 739; 3 B. Moore, 90, S. C.; Rex v. Hunter, R. & R. C. C. 511; Armfield v. Allport, 27 L. J., Exch. 42. (h) Starke v. Cheesman, Carthew, 508; Dehers v. Harriot, 1 Show. 163; Robinson v. Bland, 2 Burr. 1077. (i) Magor v. Hammond, C. P., cited by Bayley, J., 9 B. & C. 364; and see Roach v. Ostler, 1 Man. & R. 120; Byles on Bills, 5th American edition, p. 185. to his own order (k); and a bill is sometimes drawn payable to the drawee's order. It is conceived, that in the latter case, as well as the former, the instrument might, when accepted, be declared on as a promissory note of the drawee. But a bill payable to the drawee's order, is clearly not a bill of exchange (1). If a man draw a bill upon himself, it may be treated by the holder as a note (m). So may a bill drawn by a banking company in one place, on the same banking company in another place (n). An instrument which directs the drawee to pay without acceptance, is nevertheless a bill of exchange (o). A note written by the creditor to his debtor at the foot of the creditor's account, requesting the debtor to pay that account to the creditor's agent, has been held not a bill of exchange, nor an order for the payment of money within the Stamp Act (p). Bills and notes must be for payment of money only, and not for the payment of money and the performance of some other act. Therefore (q), a note to deliver up horses and a wharf, and pay money at a particular day, was held no promissory note. Nor must a bill or note be in the alternative, as to pay a sum of money, or render A. B. to prison (r). in specie. And it must be for money in specie; therefore, a promise And for money to pay in three good East India bonds (s), or in cash, or Bank of England notes (t), is not a promissory note. (k) 1 Pardessus, 351. (1) Reg. v. Bartlett, 2 M. & Rob. 362. See Peto v. Reynolds, 9 Exch. 410. (m) Roach v. Ostler, 1 M. & R. 120. (n) Miller v. Thompson, 3 M, & G. 576. (0) Reg. v. Kinnear, 2 M. & Rob. 117; Miller v. Thomson, 3 M. & G. 576. (p) Norris v. Solomon, 2 M. & Rob. 266. But in America it has been held that an indorsement on a bond or promissory note ordering the contents to be paid to order, is a good bill of exchange. Byles on Bills, 5th American edition, p. 184. (q) Martinv. Chauntry, 2 Stra. 1271; Moore v. Vanlute, B. N. P. 272, 5th ed.; Follett v. Moore, 19 L. J., Exch. 6; 4 Exch. 410, S. C. In this case a note, agreeing also (r) Smith v. Boheme, Gilb. Ca. (8) Bul. N. P. 272. (t) Bayley, 11, 6th ed.; Ex CHAPTER And for a sum certain. And for the payment of money. Must not suspend payment on a condition, And the sum must be certain, not susceptible of contingent or indefinite additions. Therefore, where an instrument promised to pay J. S. the sum of 65l., with lawful interest for the same, and all other sums which should be due to him, Lord Ellenborough held that it was not a promissory note, even for the sixty-five pounds (u). Nor must the sum payable be subject to indefinite or contingent deductions. Thus, where the defendant promised to pay 4007. to the representatives of J. S., first deducting thereout any interest or money J. S. might owe to the defendant, it was held no promissory note (x). And for the payment of money. Where the instrument contains a stipulation, that the money or a portion of it shall be paid by a set-off, it is no promissory note (y). The order or promise must be to pay absolutely and at all events; and payment must not depend upon a contingency; for, as observed by Lord Kenyon (z), "It would perplex commercial transactions, if paper securities of this kind were issued into the world, incumbered with conditions and contingencies, and if the persons to whom they were offered in negociation were obliged to inquire when these uncertain events would probably be reduced to a certainty." Besides, the recognition of conditional promissory notes would make a variety of conditional promises in writing valid, without evidence of consideration, and thus materially infringe on an established and very salutary rule of law (a). Thus, a note to this effect, "We promise to pay A. B. 1167. 11s. value received, on the death of George Henshaw, provided he leaves either of us sufficient to pay that said sum, or if we otherwise shall be able to pay it," is not a promissory note within the statute (b). So, a written engagement to pay a certain sum so many days after the defendant's marriage, is no promissory note, for, possibly, he never may marry (c). So, a paper, whereby the defendants promised parte Imeon, 2 Rose, 225; but see (u) Smith v. Nightingale, 2 (x) Smith v. Nightingale, 2 Bligh, 79; Ayrey v. Fearnsides, 4 M. & W. 168. (y) Davies v. Wilkinson, 10 A. & E. 98; 2 P. & D. 256, S. C. (z) Carlos v. Fancourt, 5 T. R. 482. (a) See Pearson v. Garrett, 4 Mod. 242. (b) Roberts v. Peake, 1 Burr. 323; Leeds v. Lancashire, 2 Camp. 205. (c) Beardsley v. Baldwin, 2 Stra. 1151; and see Pearson v. to pay the plaintiffs, or order, the sum of 137., for value received, with interest at 57. per cent., "and all fines, according to the rule," cannot be declared on as a promissory note (d). So, an order payable, "Provided the terms mentioned in certain letters, written by the drawer, were complied with," is no bill (e). So a note promising to pay, "On the sale or produce of the White Hart, St. Alban's, Herts, and the goods, &c., value received," is not a promissory note, though it be averred that, before action brought, the White Hart and the goods were sold (f). The following instrument was held not to be a note: "Borrowed and received of A. the sum of 2007. in three drafts, by B., dated as under, payable to us on C., which we promise to pay to the said A., with interest." The instrument then specified the drafts which fell due at a future day. Lord Ellenborough observed, "There can be no doubt that the money was not payable immediately, and that it was not to be paid at all, unless the drafts were honoured" (g). So, an order to pay at thirty days after the arrival of the ship Paragon at Calcutta, was held to be no bill of exchange (h). So, an order to pay "147. 3s. out of the fifth payment, when it should be due, and should be allowed by J. S.," is no bill of exchange (i). But, "I promise to pay to J. S., or his order, at three months after date, as per memorandum of agreement," was held to be a promissory note, and that if the agreement made the promise conditional, the defendant ought to have shown it by setting it out in his plea (k). An instrument in this form, "At twelve months I promise to pay A. B. 5007., to be held by them as collateral security for any monies now owing to them by M. & M., which they may be unable to recover on realizing the securities they now hold and others which may be placed in their hands by him," is no promissory note (7). Garrett, 4 Mod. 242; Comb. 227, S. C., which was before the statute 3 & 4 Anne, c. 9. (d) Ayrey v. Fearnsides, 4 M. & W. 168. (e) Kingston v. Long, Bayley, 16, 6th ed. (f) Hill v. Halford, 2 B. & P. 413. (g) Williamson v. Bennett, 2 Camp. 417; and see Clarke v. Perceval, 2 B. & Ad. 660; Shenton v. James, 5 Q. B. 199; Drury v. Macaulay, 16 M. & W. 146; Alexander v. Thomas, 16 Q. B. 333; Storm v. Stirling, 3 E. & (h) Palmer v. Pratt, 2 Bing. (i) Haydock v. Lynch, 2 Ld. 459. (1) Robins v. May, 11 A. & E. 214; 3 Per. & D. 147; 3 Jurist, 1188, S. C. CHAPTER VII. |