notes. Sect. 1. Of master of the vessel, shall, for refusing to insert the words, value repromissory ceived in coals, or receiving a note for coals without those words, forfeit £100. Upon this act it has been decided, that it extends only to contractors for coals, and to cases between an indorser and indorsee; and that though the act directs, that the instrument shall be drawn in a particular form, under a severe penalty, yet, if drawn in a different form, [331]it is not void, and that the effect of the act is only to subject the party to a penalty. Sect. 2. Of banker's notes. a BANKER'S CASH NOTES, formerly called goldsmith's notes, are in effect promissory notes given by bankers, who were originally goldsmiths. From Lord Holt's judgment in the case of Buller v. Crips, it appears that these notes were attempted to be introduced by the goldsmiths, about thirty years previously to the reign of Queen Anne, and were generally esteemed by the merchants as negotiable; but Lord Holt as strenuously opposed their negotiability as he did that of common promissory notes, and they were not generally settled to be negotiable until the statute of Anne was passed, which relates to these as well as to common promissory notes. They appear originally to have been given by bankers to their customers, as acknowledgments for having received money for their use." At present, cash notes are seldom made except by country bankers, their use having been superseded by the introduction of checks. When formerly issued by London bankers, they were sometimes called shop notes: in point of form * See Bayl. 121, 2. 3 Geo. 2. c. 26. s. 7. "And be it further enacted, by the authority aforesaid, That from and after the 24th day of June, 1730, all lightermen, and other buyers of or contractors for coals, on board of any ship or vessel in the port of London, shall, at the time of the delivery of such coals, either pay for the same in ready money, or for such part thereof as shall not be so paid for, shall give their respective promissory notes, or notes of their hands, for payment thereof, expressing therein the words, value received in coals, payable at such day or days, time or times, as shall for that purpose be agreed upon between such lighterman, or other buyer of or contractor for coals, and the master or owner of such ship or vessel, or his agent or factor on his behalf; and that all such notes, in case of non-payment at the respective days and times therein mentioned, shall and may be protested or noted, in such manner as inland bills of exchange may now be, and in default of such protesting and noting by any indorsee, and notice thereof given by such indorsee to the respective indorser or indorsers, with in twenty days after such failure of payment, such respective indorser or indorsers, to whom such notice shall not be given, shall not be chargeable with or liable to answer or pay such sum of money as shall be mentioned to be payable in or by such note or notes, nor any part there d of; any law, usage, or custom to the contrary thereof notwithstanding." S. 8. "And be it further enacted, That all such lightermen, or others, buyers of or contractors for coals, who shall, after the 24th day of June, 1730, refuse to give their note or notes for coals to them respectively delivered, and shall refuse to insert the said words, value received in coals, and every such master who shall take any such note from any dealer in coals, in which note the words, value received in coals, are not expressly inserted, such lighterman, buyers of, or contractors for coals, and masters, shall, for every such refusal or acceptance, respectively forfeit and pay the sum of one hundred pounds." y Smith v. Wilson, And. 187. Per Holroyd, J. in Wigan v. Fowler, 1 Stark. 463. * Moor v. Warren, 1 Stra. 415. Turner Mead, id. ibid. Hayward and the Bank of England, id. 550. Smith's Wealth of Nations, 1 vol 445, 6, 7, 8. but see Brook v. Middleton, 1 Campb. 449, where they were treated as checks. Selw. Ni. Pri. 4th edit. 368. Buller v. Crips, 6 Mod. 29, 30. Nicholson v. Sedgwick, Lord Raym. 180. Horton v. Coggs, 3 Lev. 299. Ford v. Hopkins, Holt, 119. 1Salk 283. S. C. d See Selw. Ni. Pri. 4th edit. 368. banker's notes. they are similar to common promissory notes, payable to bearer on Sect. 2. Of demand, and are stated in pleading as such. On account of their being payable on demand, they are considered as cash, whether payable to order or bearer, but if presented in due time, and dishonoured, they will not amount to payment. If any part of the consideration of an annuity be paid in country bank-notes, the dates and times of payment must be set forth in the memorial, because they are not considered as cash ; and if they are deposited with a stake-holder, they cannot be recovered from him as money had and received, unless he agreed to receive them as money. They, like banker's checks, are generally transferred from one person to another by delivery. They [332] may, however, be negotiated by indorsement, in which case, the act of indorsing will operate as the making of a bill of exchange, and the instrument may be declared on as such against the indorser. other respects they are affected by the same rules as bills of exchange. The time when these notes should be presented for payment, is governed by the rules relating to checks payable on demand, which have already been stated, and to which part of the work the reader is referred.' In Sect. 3. BANK NOTES owe their origin to the 5 William and Mary, c. 20. Bank notes s. 19, 20. 29., and the 8 & 9 William 3. c. 20. s. 30., by the first of which statutes, power was given to the king to incorporate the persons subscribing towards the raising and paying into the receipt of the exchequer the sum of £1,200,000, by the name of "The Governor and Company of the Bank of England." These notes are uniformly made payable on demand; Lord Mansfield, in Miller v. Race, observed, That these notes are not, like bills of exchange, mere securities, or "documents for debts, nor are so esteemed; but are treated as money "in the ordinary course and transactions of business, by the general "consent of mankind; and on payment of them, whenever a receipt. Tassel v. Lewis, 1 Lord Raym. 744. Peacock v. Rhods, Dougl. 625. Owenson v. Morse, 7 T. R. 64. f Owenson v. Morse, 7T. R. 64. Ante, 143, in notes. Ward v. Evans, Lord Raym. 928. Ante, 99, and see ante, 271, 2. mon promissory notes, or bills of exchange. g Morris v. Wall, 1 Bos. & Pul. 208. h Pickard v. Bankes, 13 East, 20. A stake-holder receiving country bank notes as money, and paying them over wrong. fully to the original staker, after he had lost the wager, is answerable to the winner, in an action for money had and received to his use. It appeared that the deposit had been made in Hull bank notes, payable to bearer, and not in coin of the realm, and the payment over to the other party was in notes of the same description. The learned Judge who tried the cause, thought that these were to be considered as money, as between those parties, and therefore the plaintiff recovered a verdict for the amount. It was afterwards moved to set aside the verdict, and by leave to enter a nonsuit. Notes of this description, It was contended, were no more than com- 3 Atk. 232. i Lovelass on Bills, 58. Mendez v. k Hill v. Lewis, 1 Salk. 132. Miller v. Race, 1 Burr. 457. See 333 Bank notes r is required, the receipts are always given as for money, not as for securities or notes." testator's money or cash," or all his property in such a house; and they They pass by a will which bequeaths all the may pass as a donatio mortis causa. In bankruptcies they cannot be followed as identical and distinguishable from money. If they be lost, an action of trover will not lie against the bona fide holder by the true owner. In a case, also, on the annuity act, where the whole consideration was described in the memorial as money, and it appeared that only a part of it was money, and the residue bank-notes, it was decided on the above principle, that the consideration was well set out. It has, however, been adjudged, that an action for money had and received will not lie against a finder of them, to recover the value, unless money has actually been received for them, though if not produced on the trial, the receipt of their value will be presumed ; nor can they be taken in execution ; nor is a tender of bank-notes sufficient, if objected to at the time of the offer," though, after such a tender, a creditor cannot arrest his debtor, it having been enacted,* that no person shall be held to bail, unless the affidavit of debt allege that no offer has been made to pay the debt in bank-notes payable on demand. The stealing of these notes is felony, and the forgery of them is also by different statutes declared to be felony. They are assignable by delivery." A mode of enforcing payment of them was provided by 8 & 9 William 3. c. 20. s. 30, but now when the right to receive payment is disputed, the course is to proceed by action against the bank. Possession is prima facie evidence of property in a bank note. Therefore, in trover for a bank-note, it is not a prima facie case for the plaintiff to prove that the note belonged to him, and that the defendant afterwards converted it; and the defendant will not be called upon to show his title to the note, without evidence from the other side that he got possession of it mala fide, or without consideration. And in Lowndes v. Anderson it was held, that bank-notes could not be followed by the legal owners into the hands of bona fide holders for valuable consideration without notice. And in Solomons v. The Bank of England, it was decided, that the holder of a bank-note is [334]prima facie entitled to prompt payment of it, and cannot be affected by the previous fraud of any former holder in obtaining it, unless evidence be given to bring it home to his privity. But where a-banknote for £500 had been fraudulently obtained by some person unknown; and on its being presented for payment sometime afterwards, by an agent of a foreign principal, information was given of the fraud; and the principal was desired to inform the bank how he came by it; but the only account he would give of it was, that he had received it in pay Fleming v. Brook, 1 Scho. & Lefr. 318, 19. 11 Ves. 662. Ante, 2. 1 Roper, 3. P Lowndes. Anderson, 13 East, 130, 135. 1 Campb. 551. ante, 147, 8. 9 Wright v. Rehd, 3 T. R. 554. Cousins v. Thompson, 6 T. R 335. Noyes v. Price and another, Sittings, Longchamp v. Kenney, Dougl, 138. 1 Wright v. Reed, 3 T. R. 554. Grigby v. Oakes, 2 Bos! & Pul. 526. * 38 Geo. 3. c. 1. s. 8. 43 Geo. 2. c. 18. s. 2. a Francis v. Nash, Rep. T. Hardw. 53. supra, note. King v. Milsom, 2 Campb. 5. Richard v. Carr, I Campb. 551. Lowndes v. Anderson, 13 East, 130. 1 Rose, 99, 102, n. a. Solomons v. The Bank of England, 13 East, 135. Sect. 3. =ment of goods from a man dressed in such a way of whom he knew nothing; and it was further proved, that bank-notes of so large a value Bank notes. were not usually circulated in that foreign country; this was held to be sufficient evidence to be left to a jury of the principal's privity to the original fraud, in an action of trover brought by his agent to recover it from the bank, who had detained it under the authority of the original owner, to whom it properly belonged. And the question was not altered by the agent who received it, having, after notice, made payments for his principal, which turned the balance in favour of such agent. f Sect. 4. notes, &c. A formal set of words is in general, no more essential to the validity of a promissory note, cash note, or bank of England note, than it is Form and to that of a bill of exchange. It is sufficient if a note amount to an qualities of absolute promise to pay money. And a note promising to account promissory with another, or his order, for a certain sum, value received, is a valid promissory note, though it contain no formal promise to pay. So where the note set forth in the declaration was, "I acknowledge my"self to be indebted to A. in £-, to be paid on demand, for value "received" on demurrer to the declaration, the court 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 pay rent. So a promissory note payable to B. (omitting the words or order,") three months after date, was holden a good note within the statute. So, where a note was in this form, "I do acknowledge that Sir A. C. has delivered to me all the "bonds and notes for which £400 were paid to him on account of "Colonel S., and that Sir A. delivered to me Major G's. receipt, and "bill on me for £10, which £10, and £15. 58., a balance due to "Sir A., I am still indebted, and do promise to pay ;" on demurrer to the declaration the note was adjudged good. And when the promise [ 555 ] was by A. 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 as negotiable as if it had been generally for value received. But the mere acknowledgment of a debt, without some words from whence a promise to pay money can reasonably be inferred, it is said, will have no other operation than being evidence of a debt and therefore the common memorandum, "IO U such a sum" has been determined not to amount to a promissory note, and need not be stamped.' Nor is an instrument acknowledging the receipt of a draft for the payment of money, and promising to repay the money, a promissory note, but only a special agreement for the re-payment, depending on the con Colehan v. Cooke, Willes, 398; see the cases, ante, 41, 2. Bopl. 34. Selw. 4th edit. 361, 2, 3. Morris v. Lee, 8 Mod. 362. 1 Stra. 629. Ld. Raym. 1396. S. C. 2 Atk. 32. Ante, 41, note. Casborne v. Dutton, Seace. M. 1 G. 2. Selw. 4th edit. 363, note p. Smith v. Kindal, 6 T. R. 123. Ante, 66, note. Moore v. Pain, Rep. Temp. Hardw. 28, where Ld. Hardwicke, C.-J. said, this point had been ruled often. Chadwick v. Allen, Stra. 706. Ante, 41. Popplewell v. Wilson, 1 Stra. 264, on error, from C. P. Israel v. Israel, 1 Campb. 493. Fisher v. Leslie, 1 Esp. Rep. 426. But in Guy v. Harris, Sittings after Easter Term, 1800, at Guildhall, in the C. P. before Lord Eldon, such a note was attempted to be given in evidence by way of set-off, but his Lordship ruled that could not be given in evidence, not being stamped, being a promissory note, though not negotiable. Mr. Serjeant Marshall for the fendant. See Bayl. 4. Manning's Index, plaintiff, Mr. Serjeant Best for the de 215. Sect. 4. tingency of the draft's being honoured. It is advisable, however, to Form and insert the words "value received." qualities of promissory notes, &c. Promissory notes, given in pursuance of the Lord's act, $2 Geo. 2. c. 28. s. 13, in order to prevent the debtor's discharge, must be given in a particular form, the statute enacting, that the prisoner shall be discharged, unless the creditor insist that he shall be detained in prison, and shall agree by writing, signed with his name or mark (or if he be out of England) under the hand of his attorney, to pay and allow the prisoner weekly, a sum not exceeding 3s. 6d. (or if more creditors than one insist on his detention, not exceeding 2s. a week each.) to be paid on Monday in every week, so long as the prisoner shall continue in execution; and in every such case the prisoner shall be remanded. And the court has no power to moderate the sum to be paid to a prisoner on his being remanded, but a note must be signed for the full sum directed by the act. And if failure be made in payment of the said weekly sums, the prisoner, upon application to the court in term time, or in vacation to a judge, may, by order of the court or judge, be discharged out of custody, on executing an assignment and conveyance of his estate and effects. The decisions on this clause of the [336 Jact have already been so ably collected, that it is not necessary here to state them.P of notes. Requisites Certain requisites are indispensable to the validity of all promissory notes thus they must be made payable at all events," and not out of a particular fund, which may or may not be productive. But a statement of the consideration for which a note is made will not vitiate it. Notes must also be for the payment of money only, and not for the performance of any other act; on the latter principle it was adjudged, that a written promise to pay £300 to B. or order, "in three good East India bonds," was not a promissory note; and that an undertaking "to pay money, and deliver up horses and a wharf," on a particular day, or an engagement to pay money on demand, or surrender the body of A. B." would not operate as a note within the statute of Anne. 66 A promise by the defendant to pay to plaintiff £26 within a month after Michaelmas, if defendant did not pay the £26 for which the plaintiff stood engaged for his brother T. B. is not a promissory note.* So a promise to pay A. B. £ value received, 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 ; and a promise to pay money within so many days after the maker of the note should marry, are not within the statute. So where the promise was to pay A. F. £-out of the maker's money that should arise from his reversion of £- when sold, Williamson v. Bennett, 2 Campb. 417. n Bishop v. Young, 2 Bos. &. Pul. 81. 37 Geo. 3. c. 85. s. 3, 4. Tidd, 6th to 16. Ante, 42. • Ante, 43. * Ante, 89. Ante, 45. |