sum, and also "all other sums which may be due,"(y) or a certain sum with interest, and also to pay "the demands of the sick club at, &c., in part of interest," (z) or a certain sum, "the current rate of exchange to be added," (a) or a certain sum, deducting what interest or money "A may owe the maker," (b) or "deducting all advances and expenses," (c) or a certain sum, "the same to go as a set-off," &c. (d) In neither of these cases can the instrument be considered as a valid promissory note, even for the specific sum which the maker promises to pay. So a direction to pay to the order of A "whatever sum you may collect for me of C," (e) or "the proceeds of a shipment of goods, value about £2,000, consigned by me to you," is not a bill of exchange.(f) SECTION IV. OF CERTAINTY AS TO THE TIME OF PAYMENT. THE time when the money is to be paid is also to be certain. Here, however, the rule that what can be made certain is certain, is permitted to operate. Thus, if payable on demand, no one can say when the demand will be made, but when it is made the note becomes at once certainly due. If payable "when demanded," this, though an unusual phrase, means the same thing; so that the statute of limitations begins with such a note on the day of the date.(g) If payable "on demand with interest after six months," this is held to mean that the demand may be immedi ants; and if so, this is certainly no promissory note within the statute, but is a specific agreement to do certain things, the consideration for doing which not being stated, the declaration is clearly bad." (y) Smith v. Nightingale, 2 Stark. 375. (z) Bolton v. Dugdale, 4 B. & Ad. 619. And see Leeds v. Lancashire, 2 Camp. 205; Davies v. Wilkinson, 10 A. & E. 98. (1) Philadelphia Bank v. Newkirk, 2 Miles, 442. (b) Barlow v. Broadhurst, 4 J. B. Moore, 471. See Kalfus r. Watts, Litt. Sel Cas. 197. (c) Cushman v. Haynes, 20 Pick. 132. ate, but that the interest will not begin unless the note lies unpaid six months, and not that the demand must be deferred until after six months.(h) But if payable with interest twelve months after notice, this means payable on demand at any time after twelve months have elapsed from the notice, and is sufficiently definite.(i) And in one case, where the note was written "on demand with interest after four months," and the words "on demand" had been partially erased, but could still be read, it was held to be payable in four months.(j) If payable "when I shall marry," or in so many days" after I shall marry," this is not sufficiently certain, because the promisor may never marry at all. (k) So if payable when certain property or goods are sold ; (1) or "when my circumstances will admit without detriment to myself or family”; (m) or “thirty days after the arrival of a certain ship"; (n) or "when in funds," (o) it is not sufficient. So if payable in instalments, no time being stipulated for the payment of the instalments, it is not a promissory note. (p) If payable "when A shall come of age," this alone would not be enough, because he might die a minor; (q) but if, in addition to this, the day is specified on which he will be of age, this is held to be good, because the note will be payable when the day arrives, though A should die before the day. (r) So if payable within a limited time after a (h) Loring v. Gurney, 5 Pick. 15. (i) Clayton v. Gosling, 5 B. & C. 360. (j) Hobart v. Dodge, Fairf. 156. In Conner v. Routh, 7 How. Miss. 176, it was held, that a note payable twenty-four after date was not void for uncertainty, nor a note on demand; but the holder might insert the time intended. (k) Beardesley v. Baldwin, 2 Stra. 1151; Pearson v. Garrett, 4 Mod. 242, Comb. 227. (1) De Forest v. Frary, 6 Cowen, 151; Hill v. Halford, 2 B. & P. 413. But see Ubsdell v. Cunningham, 22 Misso. 124. (m) Ex parte Tootell, 4 Ves. 372; Salinas v. Wright, 11 Texas, 572. (n) Paliner v. Pratt, 2 Bing. 185. (0) Harrell v. Marston, 7 Rob. La. 34. (p) Moffat v. Edwards, Car. & M. 16. - an (7) Thus, in Kelley v. Hemmingway, 13 Ill. 604, it was held, that a note payable to a person "when he is twenty-one years old," is not a promissory note. Treat, C. J. said: "The payment was to be made when the payee should attain his majority, event that might or might not take place. The contingency might never happen, and, therefore, the money was not certainly and at all events payable. The instrument lacked one of the essential ingredients of a promissory note, and consequently was not negotiable under the statute. The fact that the payee lived till he was twenty-one years of age makes no difference. It was not a promissory note when made, and it could not become such by matter ex post facto." (r) Goss v. Nelson, 1 Burr. 226. man's death, this is held to be sufficient, because an event must occur which will make this definite; (s) and if the day of payment must come, it has been said that its distance is not material; (t) but this dictum must be received with much qualification. It has also been held, but as we think on insufficient grounds, that if payable a definite time after money which is due from the government shall be paid, this is certain enough, because it is certain that the government or nation will pay their debts. (u) It has also been held, where a negotiable note which was indorsed and sued by the indorsee was made payable "by the 20th of May, or when he completes the building according to contract," that this was a good note, because "payable absolutely at a day certain." (v) The reasons for this decision are not given, and it is (8) Cooke v. Colehan, 2 Stra. 1217, Willes, 393. (t) In Colehan v. Cooke, Willes, 393, 396, Willes, C. J. said: “I put a question to the counsel, whether there is any limited time mentioned in any of the books beyond which if bills of exchange are made payable they are not good, and it was agreed by the counsel that they could find no such rule, and I am sure I can find none. But if a bill of exchange be made payable at never so distant a day, if it be a day that must come, it is no objection to the bill. There is but one passage in the books wherein any notion to the contrary is so much as hinted at ; and that is in Scacchius de Commerciis, where it is said that it had been formerly an objection against a bill of exchange, as contrary to the nature of it, that it was made payable at the end of seven months; but by his making use of the word 'formerly,' it is plain that in his opinion the law was then held to be otherwise." (u) Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood, 1 Wilson, 262. (v) Stevens v. Blunt, 7 Mass. 240. So in Goodloe v. Taylor, 3 Hawks, 458, where a note was drawn as follows: "Against the 25th of December, 1819, or when the house John Mayfield has undertaken to build for me is completed, I promise to pay," &c., was held, that the parties, by inserting a specific date of payment, had made it payable at all events, whether the house was completed or not; and that consequently the note was negotiable. In Cota v. Buck, 7 Met. 588, the instrument was in this form: "For value received I promise to pay J. P. or bearer $570, it being for property I purchased of him in value at this date, as being payable as soon as can be realized of the above amount for the said property I have this day purchased of said P., which is to be paid in the course of the season now coming." Held, that it was a negotiable promissory note. Shaw, C. J. said: "This note, we think, was payable by the promisor at all events, and within a certain limited time. The note is obscurely written and ungrammatical. But we think the meaning was this; that the signer, for value received in the purchase of property, promised to pay Pero or bearer the sum named as soon as the termination of the coming season, and sooner if the amount could be sooner realized out of the fund. Such reference to the sale of the property was not to fix the fund from which it was to be paid, but the time of payment. The undertaking to pay was absolute, and did not depend on the fund So as to the time, whatever time may be understood as the coming season'; whether harvest time or the end of the year, it must come by mere lapse of time, and that must be the ultimate limit of the time of payment." But in Alexander v. Thomas, 16 Q. P 333, it was held, that not easy to discover them, unless the note was read as a promise to pay on the 20th of May at all events, and sooner if the building was finished sooner. It has been held that a promise in writ ing to pay A a certain sum, " in such manner and proportions, and at such time and place, as he shall, from time to time, require," is a promissory note.(w) In general, it is not essential to a note that it should be dated; (2) and if there be no date, it will be considered as dated at the time it was made.(y) If it be dated, the date will be prima facie evidence of the time when the note was made,(z) but not conclusive. (a) So a note may be dated forward or antedated.(b) 6 an order for a sum "payable ninety days after sight, or when realized," is not a bill of exchange, as the latter alternative makes the sum payable on a contingency. For the plaintiff it was said: "The meaning of the bill of exchange as described in the declaration is, that it is to be paid ninety days after sight at all events, or sooner if the drawee is in funds before that period." Lord Campbell: "Even on this construction it would be uncertain whether it would be payable at all within the ninety days, and if payable within that time, on what particular day it would be so payable." And afterwards his Lordship, in delivering his judgment, said: "If we could reject the words 'or when realized' as insensible, the bill would certainly be unexceptionable. But a reasonable meaning has already been ascribed to them, viz. or when you are in funds for the purpose.' I do not see why this alternative is to be taken as limited to the term before the expiration of the ninety days rather than after. I should say the meaning is, that the bill is to be paid at the end of ninety days if the drawee should be then in funds, if not, that it shall be payable afterwards. Even, however, if the other is the right meaning, namely, that the bill is payable sooner if the drawee should be sooner in funds, and if not, at the end of ninety days at all events, I think this would not be a good bill; for the holder would have to watch and ascertain the precise time when the bill should become payable, and, if he failed in doing this and in duly presenting it, the drawer would be discharged. I am of opinion that this is not a good bill of exchange, drawn according to the custom of merchants, so as to relieve the plaintiff from the necessity of stating a consideration for it." And see Henschel v. Mahler, 3 Denio, 428. (w) Goshen, &c. Turnp. Co. v. Hurtin, 9 Johns. 217; Washington County Mut. Ins. (x) See Michigan Ins. Co. v. Leavenworth, 30 Vt. 11. (y) De la Courtier v. Bellamy, 2 Show. 422; Hague v. French, 3 B. & P. 173; Giles Bourne, 6 Maule & S. 73 (2) Anderson v. Weston, 6 Bing. N. C. 296; Emery v. Vinall, 26 Maine, 295; Taylor v. Kinloch, 1 Stark. 175; Obbard v. Betham, Moody & M. 483; Smith v. Battens, 1 Moody & R. 341. But see Cowig v. Harris, Moody & M. 141; Rose v. Rowcroft, 4 Camp. 245. (a) Dean v. De Lezardi, 24 Missis. 424; Aldridge v. Branch Bank, 17 Ala. 45. But the maker, it seems, will not be allowed to contradict the date of the note, to the prejulice of a bona fide holder. Huston v. Young, 33 Maine, 85. (b) Gray v. Wood, 2 Harris & J. 328; Richter v. Selin, 8 S. & R. 425; Pasmore v North, 13 East, 517 The case of Serle v. Norton, 9 M. & W. 309, is entirely consistent If dated forward, and any of the parties die before the day comes, such death will not affect the rights of a bona fide holder. (c) SECTION V. OF CERTAINTY AS TO THE FACT OF PAYMENT. THE necessity of this certainty, which is perhaps the most important of all, is usually expressed by the rule, that the promise must not be on a contingency. The reason of this is very apparent. The paper is intended, if negotiable, to circulate in business as money; and this on the ground that on a certain day it will become money. It is perfectly obvious, therefore, that all chances of a failure in this respect must be avoided, against which it is possible to guard. The possibility of the insolvency of the promisor, or his inability to pay when the time of payment comes, is a risk that must always be borne; but it would be most unwise to add to this other contingencies; for if these could be estimated between the original parties, a subsequent holder of the paper, or one to whom it was offered in the course of business, might be wholly unable to judge of the probabilities of the contingency, and estimate the risk accordingly. Thus, if the money be payable "provided J. S. shall leave me sufficient, or I shall otherwise be able to pay it," this is a fatal contingency. (d) So if the promise is connected with the receipt. of drafts or notes, and is to be understood as a promise to repay them; if they are not paid, nothing will be due on the promise, and as it is not certain that they will be paid, this also is a contingency fatal to the character of the paper as a promissory note, with the statement in the text. It was there held, that a post-dated check is altogether void, and cannot be received in evidence for any purpose. But this decision proceeded entirely upon a provision in an English Stamp Act. Chancellor Kent seems to have supposed that it was independent of any statutory provision. In 3 Kent, Com. 75, note, he says: “In the late case in England of Serle v. Norton, 9 M & W. 309, a post-dated check was held altogether void. We may well demur to that decision." (c) Pasmore v. North, 13 East, 517. In this case it was held, that the indorsee of a bill of exchange, made payable sixty-five days after date, which was issued by the drawer and indorsed by the payee, who died before the day when it bore date, may make title through such indorsement, in order to recover on the bill against the drawer (d) Roberts v. Peake, 1 Burr. 323. |