And when it appears by any part of the instrument, that the money Their general requi was not payable immediately, and that the payment was to depend on sites. an uncertain event, it will not operate as a bill of exchange or a promissory note, but as a special agreement, and must be stamped as such; and therefore it was recently decided, that an instrument acknowledging the receipt of a bill of exchange which had two months to run, and promising to pay the amount with interest, is a special agreement, and not a promissory note, being in effect a special undertaking to repay the amount of the bills if honoured at maturity." So, where an instrument, purporting on the face of it to be a promis- [ 47 ] sory note for the payment of money absolutely before it was signed, was indorsed with a memorandum. that if any dispute should arise between Lady W. and the plaintiff, respecting the sale of the timber for which the note was given, it should be void; it was held, that the indorsement was part of the note, and the payment being only conditional, the instrument was not a note within the statute. So, if there be a written stipulation to renew even on a separate paper, it should seem that it will qualify the liability, though it will not vitiate the instrument itself. But where an indorsement appeared merely to import the will or desire of the payee, that the maker should be indulged as to the time or manner of payment, and the original undertaking was positive, it was held, that such indorsement did not affect the validity of the note, or afford any defence. And if the instrument on the face of it, purport to be an absolute engagement to pay money at a certain time, no parol evidence of an agreement at the time, to renew or give indulgence will be admissible to defeat the action on the bill or note. And where a Williamson v. Bennett, 2 Campb. 417. The defendants were sued on the following instrument, which was stamped as and declared upon as a promissory note:-" Borrowed and received of J. and J. Williamson (the plaintiffs,) the sum of 2007., in three drafts, by W. and B. Williamson, dated as under, payable to us, W. Bennett and S. M. (the defendants) on J. and J. Williamson,) which we promise to pay unto the said J. and J. Williamson, with interest. witness this 26th day of August, 1802." As August 21st. 1 draft at 2 months L120 1 ditto 30 50 1 ditto Signed by the defendants. L200 after Trin. 1815, MS. and 4 Campb. 217. 9 Hoare and others v. Graham, 3 Camp. Lord Ellenborough. I do not think I can admit evidence of this sort; what is to become of bills of exchange and promissory notes if they may be cut down by a secret agreement that they shall not be put in suit? The parol condition is quite inconsistent with the written instrument. I will receive evidence that the note was indorsed to the plaintiffs as a trust, but the condition for a renewal entirely contradicts the instrument which the defendants have signed; such an agreement rests in confidence and honour only, and is not an obligation of law. There may, after a bill is drawn, be a binding promise for a valuable consideration to renew it, when due, but if the promise is cotemporaneous with the > Stone v. Metcalf, gent. one, &c. Sit. drawing of the bill, the law will not en Lord Ellenborough held, that this was not a promissory note; and said, 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. The plaintiffs were nonsuited. "Hartley v. Wilkinson and another, 4 M. & S. 26. 4 Campb. 127. S. C. • Bowerbank v. Monteiro, 4 Taunt. 844. Steel v. Bradfield, id. 227. Their re-promissory note on the face of it purported to be payable on demand, neral re-it was held, that parol evidence is not admissible to show that at the time of making it, it was agreed that it should not be payable till after the decease of the testator." quisites. But if the event on which the instrument is to become payable, must inevitably happen some time or other, it has been decided to be of no importance how long the payment may be in suspence. Therefore if a bill be drawn, payable six weeks after the death of the drawer's father, or payable to an infant, when he shall come of age, specifying the day when that event will happen, it will be valid and negotiable."(62) foree it. This would be incorporating Dukes v. Dow, Sittings after Easter Rawson and another v. Walker, 1 Stark. 361. Action on a promissory note for 661., payable on demand. Lord Ellenborough refused to receive parol evidence inconsistent with the terms of the note; that it was agreed between the Woodbridge v. Spooner, 3 B. & A. 226. Colehan v. Cooke, Willes, 396. Stra. 1217. S. C. On a writ of error from the Common Pleas, on a note whereby defendant promised to pay A. or order 1507., six weeks after the death of his father. The court held this to be a negotiable note within the statute, and that the distance of time of payment was no objection, as the event on which it was payable, the death of the defendant's father must happen: and see Ex parte Mitford, 1 Bro. C. C. 398; but see Ex parte Barker, 9 Ves. 110. u Goss v. Nelson, 1 Burr. 226. Action on a note payable to an infant, "when he (the infant,) shall come of age, to wit, 12th June, 1750," and it was objected, in arrest of judgment, that it was uncertain whether the money would ever have been payable, because the infant might have died under twenty-one, but the court held it a good note, because it was payable at all events on the 12th June, 1750, though the infant should have died before that time, and see 2 Bla. Com. 513. (62) A promissory note payable to A. or order, at a day certain, or when he (the promisee) completes the building according to contract," is payable absolutely at a day certain, and therefore good within the statute, and negotiable. Stevens v. Blunt, 7 Mass. Rep. 240. A note, promising to pay a sum to the president, directors and company of a turnpike road, for five shares of the capital stock of said company, in such manner and proportion, and at such time place as the president, directors, and company should from time to time require, has been held in effect payable on demand and therefore a cash note within the statu* President, &c. of the Goshen Turnpike v. Hurtin, 9 John. Rep. 217. But a different opinion seems to have been asserted in the President, &c. of the Union Turnpike Road v. Jenkins, 1 Caine's Rep. 381. A note for a certain sum payable to A. or order, “in foreign bills," (meaning thereby bills of country banks) has been held in Massachusetts not to be a good promissory note within the statute, and consequently not negotiable. Jones v. Fales, 4 Mass. Rep. quisites. re There are also decisions, that if the event on which the payment is Their ge to depend, be of public notoriety, and relating to trade, and there be a moral certainty of its taking place, the bill, &c. will be valid. On this ground the bills of exchange, called Billæ nundinales were formerly al ways holden to be good, because though the fairs on which the payment of them depended, were not always holden at a certain time, yet it was [ 49 ] certain that they would be holden. So it has been reported to have been decided, that if a bill or note be payable two months after a certain ship be paid off, or be payable on the receipt on the payee's wages, due to him from a certain ship, it is valid; but this latter decision seems questionable. The statement of a particular fund, in a bill of exchange, will not vitiate it, if it be inserted merely as a direction to the drawee how to reimburse himself; and therefore, a bill requesting the drawee, one month after date, to pay the plaintiff, or his order, a certain sum of money as my quarterly half-pay, to be due from the 24th June to the 27th September next by advance," was decided to be a valid bill, be * Colehan v. Cooke, Willes, 398. Andrews v. Franklin, 1 Stra. 24. Evans v. Underwood, 1 Wils. 262. Dawkes v. De Loraine, 3 Wils. 213. 2 Bla. Rep. 782. S. C. Lewis v. Orde, Gilb. Ev. 172. Hill v. Halford, 2 Bos. & Puł. 414., 5 ante, p. 44, note, and p. 45, note, sed vide Kyd. 58. Per Willes, C. J. in delivering judgment in Colehan v. Cooke, Willes, 394. *Andrews v. Franklin, 1 Stra. 24. A note, payable two months after a certain ship should be paid off, was objected to, as depending upon a contingencey which might never happen ; but per cur. the paying off the ship is a thing of a public nature, and this is negotiable as a promissory note. Bayl 3d edit. 15. See also Selw. N. P. 4th edit. 367. * Evans v. Underwood, 1 Wils. 262.This was an action brought by an indorsee against the maker, upon a note payable on the receipt of the payee's wages from his majesty's ship the Suffolk; the court thought this case like that of Andrews v. Franklin, and after looking into that case, ARE SAID to have given judgment for the plaintiff. Upon this case there is a note in Bayley on Bills, 3d edit. 15, as follows:-"Quære tamen, because it was uncertain, though the wages might be paid, whether the maker would receive them." See also Lewis v. с Orde, 1 Gilb. on Evid. by Loft, 178.- In Selw. N. P. 4th edit. 367, note 71. quære. M'Leod v. Snee, Stra. 762. Lord Raym. 1481. 11 Mod. 400 1 Barn. 12. S. C. Error on a judgment, given against M.Leod, on a bill of exchange drawn by J. S. on the 25th May, 1724, upon M'Leod, and directed him, one month after the date, to pay A. B. or order 97. 10s. as his quarter's half-pay from 24th June, 1724, to 25th September following. The court were of opinion that this was a good bill of exchange, for it was not payable out of a particular fund, nor upon a contingency, and was made payable at all events; and was drawn upon the general credit of the drawer, not out of the half-pay, for it is payable as soon as the quarter began for the half-pay mentioned in the bill, which was not to be due for three months after. 245. But in New York, a note payable to A. or bearer, in "York state bills or speeie," has been held a negotiable note within the statute, upon the ground that the bills mentioned meant bank paper, which in conformity with common usage and understanding, is regarded as cash; and therefore that the note meant the same as if payable in lawful current money of the state. Keith v. Jones, 9 John. Rep. 120. A promissory note payable at a particular place, "in the bank notes current in the city of New York," is a negotiable note within the statute. Judah v. Harris, 19 Johns. 144. But in M Cormick v. Trotter, 10 Serg. & Rawle, 94 it was held, that a note promis ing to pay A. B. or order five hundred dollars in notes of the chartered banks of Pennsylvania is not a negotiable note on which the indorsee can sue in his own name. neral quisites. Their ge- cause it would be payable, though the half-pay might never become due: re- and an order from the freighter of a ship, to pay money on account of freight, is sufficient, because it is an admission that so much at least is due though we have seen that an order from the owner of a ship, to the freighter, to pay money on account of freight, is not valid. Nor will a bill be vitiated by the insertion of words, pointing out the consideration of the acceptance: as, for instance, "value received, out of [ 50 ]the premises in Rosemary-lane ;" or "being a portion of a value as under deposited in security for payment hereof, or on account of wine had of the drawer. (64) A note also, whereby the maker promised to pay to A. B. £8. "so much being to be due from me to C. D. my landlady at Lady-day next, who is indebted in that sum to A. B." was, on the same principle, held not to be conditional. '(64) Pierson v. Dunlop, Cowp. 571. vide ante, 45. • Baubury v. Lissett, Stra. 1112. vide ante, 45. Burchell, administrator, &c. v. Slocock, Lord Raym. 1545. Action on a promissory note, whereby the defendant promised to pay to A. B. 1017. 123. in three months after the date of the said note value received, out of premises in Rosemary-lane, late in the possession of G. H. The court, upon demurrer, held this to be a promissory note within the statute, and gave judgment for the plaintiff. & Haussoullier v. Hartsinck and others, 7 T. R. 733. Payee against the maker of a promissory note, whereby the defendant promised to pay, or bearer, 251., being a portion of a value as under deposited, in security for the payment thereof. Upon a special case being reserved, the court said they were clearly of opinion, that though as between the original parties to the transaction, the payment of the notes was to be carried to a particular account, the defendants were liable on these notes, which were payable at all events. See also Lord Raym. 1545. Buller v. Crips. 6 Mod. 29. Mod. Ent. 312. Anonymous, Select Cases 30. (64) So where a note was made payable to A. or order, and on the back of it an indorsement was written, that it was to be delivered to A. in consideration of a judgment against C. to be assigned to the maker, it was held a good promissory note within the statute, and that the indorsement only operated as a notice to any purchaser of the consideration of the note. Sanders v. Bacon, 8 Jolin. Rep. 485. (64) In Massachusetts the statute of 3 & 4 Ann. ch. 9. was never enacted but in practice the provisions of the first section were early adopted, and the form of declaring on negotiable notes resulting from that statute was extended to notes not negotiable. It may therefore be considered as the common law of that state, that all cash notes are negotiable, and that all notes for merchandize may be sued by the promisee against the promisor, and when indorsed by the indorsee against his indorser, who may declare in the same manner as they might if the note were negotiable. Jones v. Fales, 4 Mass. Rep. 245. and Eaton v. Fallensbee, Sup. Court, Essex, June Term. 1779, MSS. Whether this doctrine applies also to notes and bills payable out of particular funds, does not seem to have been decided. But even admitting that a bill payable out of a particular fund, could not be declared on within the statute; yet if the drawee accept to pay it, when the funds come into his hands, this binds him to the payment when he receives the funds, and the payee may on his refusal recover the amount in an action for money had and received, Stevens v. Hill, 5 Espin. Rep. 247. stated post, 253, and see Scarborough v. Giegar, 1 Bay's Rep. 368. Mershon v. Withers, 1 Bibbs Rep. 503. Mowry v. Todd, 12 Mass. Rep. 281. A writing was made thus- "good for dollars on demand. A. B." In an action thereon it was holden to import no promise to the holder, without evidence to show that it was actually given to him or some subsisting connexion shown from which that fact might be inferred. Brown v. Gilman, 13 Mass. Rep. 158. ar A written promise to pay the bearer a sum of money, "provided the ship rives at a European port free from capture and condemnation by the British," was held not to be a negotiable note within the statute of 3 & 4 Ann. Coolidge v. Ruggles, 15 Mass. Rep. 387. In New York, a like usage in relation to notes not within the statute, has not prevailed; consequently, a note for a sum payable in lands at a specific price per acre, cannot be declared on even between the original parties as a promissory note, but the conside Their parts and particular Besides these principal qualities which bills of exchange must possess, there are certain other matters proper to be attended to in the formation of them these are, 1st, that in certain cases the instrument be pro-requisites perly stamped. 2dly, that it be properly dated. 3dly, that the time of payment be clearly expressed. 4thly, that it contain an order, or, at least, a request, to pay. 5thly, that in the case of a foreign bill drawn in sets, each set contains a proviso that it shall only be payable in case the others are not paid. 6thly, that it be clearly expressed to whom the bill is payable. Tihly, that where the instrument is intended to be negotiated, there be words inserted, giving the power of transfer. 8thly, that the money to be paid be distinctly and intelligibly expressed, and in certain cases, that it be above a certain amount. 9thly, that in certain cases, value received be inserted. 10thly, that under particular circumstances, a bill state whether it is to be paid with or without further advice. 11thly, that the drawer's name be clearly signed. 12thly, that the bill be properly addressed to the drawee. And lastly, that where the bill is to be paid at a certain place, that place be properly described. The better mode of considering each of these matters, will be by presenting the reader with the usual forms of a foreign and inland bill of exchange, and of a check, and then considering the various parts of each in their natural order. this my first Bill of Exchange (second and third of the same tenor and date not paid,) to Messrs. 12 10 11 -, or order (" or bearer") Ten Thousand Livres Tournoises, 13 14 value received of them, and place the same to account, or per advice from The Figures refer to the parts of the observations in the following pages of this chapter. ration must be specially set forth and proved, as in other declarations in assumpsit. Smith v. Smith, 2 John. Rep. 225. And even the terms "value received" in a note not within the statute, have been held not of themselves to imply a consideration, but a consideration must be specially averred and proved. Lansing v. M'Killip, 3 Caine's Rep. 286. However this doctrine has been over-ruled, and it is now held that these terms were prima facie evidence of a consideration in such a note, and sufficient to cast the burthen of proof of the contrary on the defendant. Jerome v. Whitney, John. Rep. 321. Jackson v. Alexander, 3 John. Rep. 484. And therefore such a note would be good evidence to support the money counts. Ibid. and Smith v. Smith. But if no consideration appear on the face of a note, not negotiable within the statute, and no terms implying value received, it cannot be given in evidence under the money counts. Sexton v. Johnson, 10 John. Rep. 418. |