stated, or any other, to have his notes in this form, he would make it a rule to have all his notes so made. Then he could indorse what notes he chose to, and not injure any by withholding his indorsement. (v)

(v) Notes of this kind are now common in England as well as in this country. At what precise time they first came into use, and what was the occasion which gave rise to them, it is impossible to say. Baron Parke, in Hooper v. Williams, 2 Exch. 21, characterizes them as "securities in this informal, not to say absurd form, probably introduced long after the statute of Anne, - for what good reason no one can tell, — and become of late years exceedingly common." So Chief Justice Wilde, in Brown v. De Winton, 6 C. B. 342, said that notes in this form, according to his experience, which extended over a period exceeding forty years, were very far from uncommon. They seem not to have attracted the attention of courts until a recent date. It has always been the received opinion in this country, that instruments in this form were negotiable within the statute of Anne, and that they differed in no material particular from notes in the ordinary form. Such also, according to the observation of eminent counsel in Brown v. De Winton, was the received opinion in England until the case of Flight v. Maclean, 16 M. & W. 51. Since that case, the nature and construction of instruments of this kind have been very learnedly and elaborately discussed by the three principal common law courts in Westminster Hall. The case of Flight v. Maclean came up in the Court of Exchequer in 1846. The declaration stated that the defendant made his promissory note in writing, and thereby promised to pay to the order of the defendant £500 two months after date, and that the defendant then indorsed the same to the plaintiff. To this there was a special demurrer, assigning for cause, that it was uncertain whether the plaintiff meant to charge the defendant as maker or as indorser of the note, and that a note payable to a man's own order was not a legal instrument, and could not be negotiated. The court sustained the demurrer without much discussion, "on the ground that the instrument in question, made payable to the maker's order, was not a promissory note within the statute of Anne, which requires that a promissory note, to be assignable, shall be made payable by the party making it to some other person,' or his order, or unto bearer.” During the argument, however, Parke, B. put to the counsel this question: "Though by the law merchant the note cannot be indorsed, could not the defendant make this a promissory note by indorsing it to another person?" This case was followed the next year in the Queen's Bench by the case of Wood v. Mytton, 10 Q. B. 805, in which precisely the same question was presented as in Flight v. Maclean, except that in the latter it arose on a motion in arrest of judgment, whereas in the former it arose on a special demurrer. The question was argued at considerable length, and Lord Denman, after a very minute examination of the statute of Anne, held that the instrument declared on was a promissory note within the terms of the statute, and judgment was given for the plaintiff It is to be observed, however, that Patteson, J., during the argument of this case, put to the counsel a question similar to that put by Baron Parke in Flight v. Maclean. 'Whatever," said he, "may be the case with respect to a note like this before indorsement, may it not, as soon as it is indorsed, come within the statute, either as a note payable to bearer, if it is indorsed in blank, or as a note payable to the person designated, if it is indorsed in full?" In 1848 the question came up again in the Court of Exchequer, in the case of Hooper v. Williams, 2 Exch. 13. The instrument declared on in this case was similar to those in the two former cases, being made payable to the defendant's own order, and by him indorsed in blank. The

If the note be payable to bearer or holder, then the promise is made to any and every person who obtains possession of the note, and presents it for payment. This note also is negotiable; but in a somewhat different sense, and under a somewhat different

pleader, however, adopting the suggestion of Mr. Baron Parke and Mr. Justice Patteson, declared as upon a note payable to bearer. At the trial the defendant objected that there was a variance between the note and the declaration, and the case coming before the court in banc upon this objection, Parke, B., in delivering the opinion of the court, said: "In Flight v. Maclean, this court held, on special demurrer to the first count of a declaration stating a note payable to the order of the maker, and indorsed to the plaintiff, that the count was bad, such a note not being within the statute of Anne. The case of Wood v. Mytton afterwards came on in the Queen's Bench. It was an action on a similar note indorsed to the plaintiff. After verdict for the plaintiff, a motion was made in arrest of judgment; and the court discharged the rule, holding, after a minute examination of all the provisions of the statute of Anne, that such a note was within that statute, and assignable by indorsement. Though these decisions are not at variance, as will be afterwards explained, the construction of the statute by the two courts differs. After a careful perusal of the statute, we must say that we do not think that it ever contemplated the case of notes payable to the maker's order, which are incomplete instruments, and have no binding effect on any one till indorsed. The Court of Queen's Bench thought, that, though the first part of the first section of the statute of Anne applied only to notes payable to another person or his order, or to bearer, which notes it makes obligatory between the parties; yet that the second part applies to every note payable to any person, and therefore includes a note payable to the maker or his order. It appears to us that this is not the meaning of this part of the section, which is, as we think, intended to make those instruments, to which it had previously given an obligatory effect between the original parties, transferable to third persons, so as to enable them to sue upon them as upon the transfer of bills of exchange. The previous part of the section had given to the payee, when the note was made payable to another person, or to another person or order, and to the bearer, whoever at any time he might be, a right to sue; thus providing entirely for notes payable to bearer, whether in the hands of the original or a subsequent bearer. And then the section proceeds to make the class of notes payable to a person or order transferable. We think that the legislature, by the second part of the section, could only mean to make that instrument which gave a right to sue assignable; and no right to sue could exist in any one, in the case of a note payable to the maker's order, until the order was made in the shape of an indorsement; until that indorsement was made, it was an imperfect instrument, and, in truth, not a promissory note at all, and conse quently not transferable under the statute. What, then, is the effect of the indorsement to another person? We think it was to perfect the incomplete instrument, so that the original writing and indorsement taken together became a binding contract, though an informal one, between the maker and the indorsee, and then, and not till then, it became an assignable note. It is well settled, that no particular form of words is necessary to constitute a promissory note. If a man draws an instrument in the form of a bill of exchange on himself, and accepts it, it is a promissory note. If he says, I pay to A. B. £ 100,' and adds an address to the instrument, it may be declared on as a note. What, then, is the meaning of the instrument in question? Before the indorsement it may be considered to be a promise to pay £ 150 two months after date to the person to whom the maker should afterwards, by indorsement, order the amount to be paid, such

system of rules from those notes which are payable to some specific promisee or order. We shall speak of them more particularly hereafter.

indorsement being intended to have the same operation as if put on a complete note. If, then, the indorsement should be to a particular person, or to A. B. or his order, it would be a note payable to that person, or to A. B. or his order; and if in blank it would be payable to bearer, in like manner as a sum secured by a complete note would have been by similar indorsements. It may follow as a consequence, that the holder might fill up the blank indorsement by writing over it his own name, and so make it payable to himself, although it is not necessary to determine that point; and, reading the note as payable to bearer, any one may afterwards indorse his own name, and so make himself liable to subsequent holders, as the indorser of a complete note payable to bearer would do. It appears to us, then, that the instrument in this case was, when it first became a binding promissory note, a note payable to bearer, and consequently was properly described in the declaration. This view of the case reconciles the decision of this court in Flight v. Maclean with that of the Queen's Bench in Wood v. Mytton; but not the reasons given for those decisions. In the case in this court the declaration was bad on special demurrer, as it did not set out the legal effect of the instrument. In that in the Queen's Bench, the motion being for arrest of judgment, the declaration was, in substance, good; for it set out an inartificial contract, which had the legal effect of a valid note, payable, as stated on the record, to the plaintiff. The difference between the two courts in the construction of the statute is of no practical consequence, as, in our view of the case, securities in this informal, not to say absurd, form are still not invalid; and it might be of much inconvenience if they were, for there is no doubt that this form of note, probably introduced long after the statute of Anne, and for what good reason no one can tell, has become, of late years, exceedingly common; and it is obvious, that, until they are indorsed, they must always remain in the hands of the maker himself, and so he can never be liable upon them." Shortly after the decision of this case, the same question came up in the Common Bench, in the cases of Brown v. De Winton, and Gay v. Lander, 6 C. B. 336. In Brown v. De Winton, the question came up in the same shape as in Wood v. Mytton, and Coltman, J., in giving the judgment of the court, delivered a very able and elaborate opinion, in which he agreed entirely with the view taken by the Court of Exchequer. In Gay v. Lander the question was presented in a little different light. We have already seen that, when a note is made payable to A. B. or his order, the words "his order" impart to the note a permanently assignable quality, into whose hands soever it may come; so that, though A. B. indorse the note to C. D. specially, without using the words "or his order," yet C. D. may indorse it in turn to whomsoever he pleases. The point raised in Gay v. Lander was, whether the indorsement should receive the same construction in the case of a note payable to the order of the maker and by him indorsed, and the court held that it should. Coltman, J., in delivering the opinion, said: "We think that the principle on which the case of Brown v. De Winton was decided will extend to this case. The principle on which that case was decided is, that the note, before it was indorsed, was in the nature of a promise to pay to the person to whom the maker should afterwards, by indorsement, order the amount to be paid; and that, after the note is indorsed and circulated, it must be taken, as against the party so making and indorsing the note, that he intended that his indorsement should have the same effect as an indorsement by the payee of a note payable to the order of a person other than the maker would have had. Now it is well established that, if a note be made payable to J. S. or order, and

SECTION II.

OF THE FORM OF PROMISSORY NOTES.

MR. CHITTY says that the usual form of a promissory note in England is: "£50 (or other proper sum). London (or other place), 1st January, 1840 (or other proper date). Two months after date (or at any other specified time, or on demand), I promise to pay to Mr. A. B. or order, fifty pounds, for value received. (Signed) CD."(w) In America a common form is: "New York, January 1, 1854. Value received, I promise to pay A. B. or order, one thousand dollars in four months. C. D." But as no special form is necessary in law,(x) so no one prevails in practice to the exclusion of others. The collocation of the words varies, the "value received" being often at the end; and sometimes the promise is directly to the payee, as "I promise A. B. to pay him or his order"; and frequently the words "from" or "after" "date" are added to the time of payment, although, when not added, they are of course implied.

Firms doing much business frequently have note-books printed, like check-books, with a margin, on which a memorandum of the number, date, parties, and amount may be entered for future reference and identification. It is usual in such printed forms to leave the date, parties, and amount in blank; but everything may be printed but the signature. That must be in writing. It has been held, incautiously we think, that an indorsement may be written and signed in pencil only; (y)

J. S., in such case, indorses the note specially to Smith & Co., without adding 'or order,' Smith & Co. may convey a good title to any other person by indorsement." It may, perhaps, be inferred from what fell from Baron Parke in Hooper v. Williams, that he entertained a different opinion on this last point, but the point did not arise in that case, and probably his attention was not particularly directed to it See Muldrow v. Caldwell, 7 Misso. 563; Lea v Branch Bank, 8 Port. Ala. 119 Scull v. Edwards, 8 Eng. 24; Blackman v. Green, 24 Vt. 17; Little v. Rogers, 1 Met. 108; Potter v. Tyler, 2 Met. 58.

(w) Chitty on Bills (9th ed.), 516.

(x) Morris v. Lee, 1 Stra. 629, 2 Ld. Raym. 1396, 8 Mod. 362; Brooks v. Elkins, 2 M. & W. 74; Wheatley v. Williams, 1 M. & W. 533.

(y) Geary v. Physic, 5 B. & C. 234. This was assumpsit on a promissory note by an indorsee against the maker. It appeared that the indorsement was in pencil; and it was contended by the counsel for the defendant, that this was not such an indorsement as the law and custom of merchants required, citing Co. Litt. 229 a, where Lord Coke,

and this for reasons which would apply as well to the note itself. We are, however, inclined to think that better reasons might be drawn from the nature and purpose of negotiable promissory notes, for requiring that they should be written and indorsed in a way less open to fraud and uncertainty than in pencil. Perhaps a distinction should be made between a negotiable promissory note, which should in every respect be capable of becoming a trustworthy and efficient instrument of business, and a note

speaking of a deed, says: "Here it is to be understood, that it ought to be in parchment or in paper. For if a writing be made upon a piece of wood, or upon a piece of linen, or in the bark of a tree, or on a stone, or the like, &c., and the same be sealed or delivered, yet is it no deed, for a deed must be written, either in parchment or paper, as before is said, for the writing upon these is the least subject to alteration or corruption." But the court held the indorsement good. And Abbott, C. J. said: "There is no authority for saying, that, where the law requires a contract to be in writing, that writing must be in ink. The passage cited from Lord Coke shows that a deed must be written on paper or parchment, but it does not show that it must be written in ink. That being so, I am of opinion that an indorsement on a bill of exchange may be by writing in pencil. There is not any great danger that our decision will induce individuals to adopt such a mode of writing in preference to that in general use. The imperfection of this mode of writing, its being so subject to obliteration, and the impossibility of proving it when it is obliterated, will prevent its being generally adopted. There being no authority to show that a contract which the law requires to be in writing should be written in any particular mode, or with any specific material, and the law of merchants requiring only that an indorsement of bills of exchange should be in writing, without specifying the manner in which the writing is to be made, I am of opinion that the indorsement in this case was a sufficient indorsement in writing within the meaning of the law of merchants, and that the property in the bill passed by it to the plaintiff." Bayley, J.: “I think that a writing in pencil is a writing within the meaning of that term at common law, and that it is a writing within the custom of merchants. I cannot see any reason why, when the law requires a contract to be in writing, that contract shall be void if it be written in pencil. If the character of the handwriting were thereby wholly destroyed, so as to be incapable of proof, there might be something in the objection; but it is not thereby destroyed, for, when the writing is in pencil, proof of the character of the handwriting may still be given. I think, therefore, that this is a valid writing at common law, and also that it is an indorsement according to the usage and custom of merchants; for that usage only requires that the indorsement should be in writing, and not that that writing should be made with any specific materials."

The same point was decided in Closson v. Stearns, 4 Vt. 11; Reed v. Rcark, 14 Texas, 329; Brown v. Butchers', &c. Bank, 6 Hill, 443; Partridge v. Davis, 20 Vt. 499, 503. Testamentary instruments in pencil have frequently been admitted to probate. See Rymes v. Clarkson, 1 Phillim. 22; Green v. Skipworth, 1 Phillim. 53; Dickenson v. Dickenson, 2 Phillim. 173. So it has been held that a memorandum in pencil is sufficient to satisfy the Statute of Frauds. Merritt v. Clason, 12 Johns. 102, s. c. nom. Clason v. Bailey, 14 Johns. 484; Draper v. Pattina, 2 Speers, 292. And in McDowel v. Chambers, 1 Strob. Eq. 347, it was held that a deed in pencil was sufficient.