ized statement by a merchant of his account with a debtor. The language of the undertaking so indorsed is as follows:

"I hereby accept this bill, in compliance with the terms of contract and specifications with Mr. H. A. Garvey, payable to E. F. Hallack thirty days after July 9, 1881.

"[Signed]

E. R. Cowan."

The defense admitted the signature, and that no payment had been made. Aside from this, the undertaking was all the evidence introduced on the trial in the court below, and upon it the plaintiff recovered judgment. Two points are made by counsel: (1) That no consideration was alleged or proved, and that, therefore, the court erred in overruling the defendant's motion for a nonsuit; (2) that the court erred in sustaining the demurrer to the third defense.

It is well understood that in an action upon a simple contract, the plaintiff, in order to recover, must allege and prove a consideration. In this connection, however, it is to be remembered-First, that the admission of a consideration by the terms of the written contract is prima facie evidence of its existence, and satisfies the rule; second, that negotiable instruments import a consideration, and are exceptions to the rule. 1 Pars. Cont. 430; 1 Daniel, Neg. Inst. § 161; Whitney v. Stearns, 16 Me. 394. We do not think that the instrument sued upon contains, by its terms, an admission of such a consideration as in itself relieved the plaintiff from the necessity of making proof of a consideration. It admits a contract with Garvey to accept, but it does not disclose any consideration for such a contract, and we are not at liberty to presume its existence. It would be illogical to treat that as a consideration which itself depends for its value and validity upon the existence of a consideration. Whether the writing imports a consideration is a more difficult question, and depends upon whether it is negotiable under the provisions of the statute concerning bonds, bills, and promissory notes. Chapter 9, Gen. St. 142. Section 3 of the act provides that "all promissory notes, bonds, duebills, and other instruments in writing, made by any person, whereby such person promises or agrees to pay any sum of money or article of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due to any other person or persons, shall be taken to be due and payable to the person or persons to whom the said note, bond, bill, or other instrument in writing is made." Section 4 provides that "any such note, bill, bond, or other instrument in writing, made payable to any person or persons, shall be assignable by indorsement thereon, under the hand of such person and of his assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively."

Under this statute all promissory notes and instruments in writing for the payment of money are negotiable, whether so expressed or not. And whether the particular instrument contains the words "or

order," or equivalent words, or not, its legal effect is the same as if it did contain such words. Thackaray v. Hanson, 1 Colo. 366; Roosa v. Crist, 17 Ill. 450, 65 Am. Dec. 679; Archer v. Claflin, 31 Ill. 306. To constitute a good promissory note, no precise words of contract are necessary, provided they amount, in legal effect, to a promise to pay. In other words, if over and above the mere acknowledgment of the debt there may be collected from the words used a promise to pay it, the instrument may be regarded as a promissory note. 1 Daniel, Neg. Inst. § 36 et seq.; Byles, Bills, 10, 11, and cases cited. See, also, the following decisions under statutory provisions similar to our own: Bilderback v. Burlingame, 27 Ill. 338; Archer v. Claflin, 31 Ill. 306; Jacquin v. Warren, 40 Ill. 459; White v. Smith, 77 Ill. 351, 20 Am. Rep. 251; Petillon v. Lorden, 86 Ill. 361; Stacker v. Hewitt, 1 Scam. (Ill.) 207; Smith v. Bridges, Breese (I.) 18; Williams v. Forbes, 47 Ill. 148; Sappington v. Puliam, 3 Scam. (Ill.) 385; Roosa v. Crist, 17 Ill. 450, 65 Am. Dec. 679; Wilder v. De Wolf, 24 Ill. 190.

"Due A. B. $325, payable on demand," or, "I acknowledge myself to be indebted to A. in $109, to be paid on demand for value received," or, "I. O. U. $85 to be paid May 5th," are held to be promissory notes, significance being given to words of payment as indicating a promise to pay. 1 Daniel, Neg. Inst. § 39, and cases cited.

Hallack's itemized account with Garvey, upon which the undertaking of the defendant is indorsed, is in no sense negotiable paper. The indorsement thereon, however, signed by the defendant, is a new undertaking; and if, under our statutes, it is negotiable, it imports a consideration. Bay v. Freazer, 1 Bay (S. C.) 72. The word "accepted" on a bill of exchange is an engagement to pay the bill in money when due. Indorsed upon nonnegotiable paper, as in this case, there is authority for saying that it would not import a consideration as in the case of such indorsement upon negotiable. paper, and a consideration would have to be alleged and proved. Byles, Bills, 3, note; Jeffries v. Hager, 18 Mo. 272; Richardson v. Carpenter, 2 Sweeny (N. Y.) 366. The language of the undertaking, however, must be considered as a whole, and in this case we think it clearly imports a promise upon the part of the defendant Cowan to pay Hallack, the payee, the amount of the bill upon which it is indorsed, at the time specified. 1 Daniel, Neg. Inst. § 36 et seq., and cases cited.

We think the writing comes clearly within the provisions of the statute which we have quoted; that is to say, it is "an instrument in writing" made by the defendant Cowan, whereby he promises to pay in money, at a specified date absolute, the amount of the bill upon which the undertaking is indorsed. As such it is a negotiable instrument, and imports a consideration. Our statute in this respect, is substantially the statute of 3 & 4 Anne, c. 9 (1 Daniel, Neg. Inst. § 5, note; Id. § 162), the effect of which was, in an action upon

a promissory note, to dispense with the necessity of either alleging or proving a consideration. Peasley v. Boatwright, 2 Leigh (Va.) 198. In this view, the plaintiff was entitled to recover on the evidence introduced, and the defendant's motion for a nonsuit was properly overruled. *

Affirmed.

GAY v. ROOKE.

(Supreme Judicial Court of Massachusetts, Middlesex, 1890. 151 Mass. 115, 23 N. E. 835, 7 L. R. A. 392, 21 Am. St. Rep. 434.)

Contract on the following instrument, declared on as a promissory note:

"Marlboro', Sept. 23, 1881. “I. O. U., E. A. Gay, the sum of seventeen dolls. 5/100, for value received. John R. Rooke."

Writ dated September 19, 1887. At the trial in the superior court, without a jury, before Dewey, J., the only issue was whether the plaintiff was entitled to interest from the date of the instrument, or from that of the writ, the service of which was the only demand made by the plaintiff.

The plaintiff asked the judge to rule, as matter of law, that he was entitled to interest from the date of the instrument. The judge declined so to rule, and ruled that interest could be recovered from the date of the writ only, and found for the plaintiff for $17.05 only; and the plaintiff alleged exceptions.

DEVENS, J. In order to constitute a good promissory note, there should be an express promise on the face of the instrument to pay the money. A mere promise implied by law, founded on an acknowledged indebtedness, will not be sufficient. Story, Prom. Notes, § 14; Brown v. Gilman, 13 Mass. 158. While such promise need not be expressed in any particular form of words, the language used must be such that the written undertaking to pay may fairly be deduced. therefrom. Commonwealth Ins. Co. v. Whitney, 1 Metc. 21. In this view, the instrument sued on cannot be considered a promissory note. It is an acknowledgment of a debt only; and, although from such an acknowledgment a promise to pay may be legally implied, it is an implication from the existence of the debt, and not from any promissory language. Something more than this is necessary to establish a written promise to pay money. It was therefore held in Gray v. Bowden, 23 Pick. 282, that a memorandum on the back of a promissory note, in these words, "I acknowledge the within note to be just and due," signed by the maker, and attested by a witness, was not a promissory note signed in the presence of an attesting witness within the meaning of the statute of limitations. In England an I. O. U., there being no promise to pay embraced therein, is treated.

as a duebill only. The cases, which arose principally under the stamp act, are very numerous, and they have held that such a paper did not require a stamp, as it was only evidence of a debt. 1 Daniel, Neg. Inst. (3d Ed.) § 36; 1 Rand. Com. Paper, § 88; Fesenmayer v. Adcock, 16 Mees. & W. 449; Melanotte v. Teasdale, 13 Mees. & W. 216; Smith v. Smith, 1 Fost. & F. 539; Gould v. Coombs, 1 C. B. 543; Fisher v. Leslie, 1 Esp. 425; Israel v. Israel, 1 Camp. 499; Childers v. Boulnois, Dowl. & R. N. P. 8; and Beeching v. Westbrook, 8 Mees. & W. 412.

While, in a few states, it has been held otherwise, the law as generally understood in this country is that, in the absence of any statute, a mere acknowledgment of a debt is not a promissory note; and such is, we think, the law of this commonwealth. Gray v. Bowden, 23 Pick. 282; Commonwealth Insurance Co. v. Whitney, 1 Metc. 21; Daggett v. Daggett, 124 Mass. 149; Almy v. Winslow, 126 Mass. 342; Carson v. Lucas, 13 B. Mon. (Ky.) 213; Garland v. Scott, 15 La. Ann. 143; Currier v. Lockwood, 40 Conn. 349, 16 Am. Rep. 40; Brenzer v. Wightman, 7 Watts & S. (Pa.) 264; Biskup v. Oberle, 6 Mo. App. 583. Some states have by statute extended the law of bills and promissory notes to all instruments in writing and whereby any person acknowledges any sum of money to be due to any other 1 Randolph, Com. Paper, § 88; Rev. St. Ill. 1884, c. 98, § 3; Gen. St. Colo. 1883, c. 9, § 3; Rev. St. Ind. 1881, § 5501; Rev. Code Iowa, 1873, § 2085; Rev. Code Miss. 1880, §§ 1123, 1124.

person.

We have no occasion to comment upon those instruments in which words have been used or superadded from which an intention to accompany the acknowledgment with a promise to pay has been gathered, or where the form of the instrument fairly led to that conclusion. Daggett v. Daggett, 124 Mass. 149. Almy v. Winslow, 126 Mass. 342. No such words exist in the instrument sued, nor is it in form. anything but an acknowledgment. The words "for value received" recite indeed the consideration, but they add nothing which can be interpreted as a promise to pay. It is therefore unnecessary to consider whether, if the paper were a promissory note, interest should be calculated from its date. Upon this point we express no opinion. If it is to be treated as an acknowledgment of debt only, as we think it must be, the plaintiff is not entitled to interest except from the date of the writ. Even if it was the duty of the defendant to have paid the debt on demand, yet if no demand was made, if no time was stipulated for its payment, if there was no contract or usage requiring the payment of interest, and if the defendant was not a wrongdoer in acquiring or detaining the money, interest should be computed only from the demand made by the service of the writ. Dodge v. Perkins, 9 Pick. 368; Hunt v. Nevers, 15 Pick. 500, 26 Am. Dec. 616. "In general," says Chief Justice Shaw, "when there is a loan without any stipulation to pay interest, and where one has the money of another, having been guilty of no wrong in obtaining

it, and no default in retaining it, interest is not chargeable." Hubbard v. Charlestown Railroad Co., 11 Metc. 124; Calton v. Bragg, 15 East, 223; Shaw v. Picton, 4 Barn. & C. 723; Moses v. Macferlan, 2 Burr. 1005; Walker v. Constable, 1 Bos. & P. 306.

Exceptions overruled.

SECTION 4.-THE ORDER

RUFF v. WEBB.

(Nisi Prius, before Lord Kenyon, C. J., 1794. 1 Esp. 129.)

Assumpsit for work and labour, with the common counts.
Plea of the general issue.

The action was brought to recover the amount of wages due by the defendant to the plaintiff.

The plaintiff had been servant to the defendant, and, on his discharging him from his service, had given him a draft for the amount of his wages on an unstamped slip of paper, in the following words: "Mr. Nelson will much oblige Mr. Webb, by paying to J. Ruff, or order, twenty guineas on his account."

This draft the plaintiff had taken, but it did not appear that he had ever demanded payment of it from Mr. Nelson, to whom it was addressed.

It was given in evidence on the part of the defendant, that he lived in the country, and kept cash with Mr. Nelson in London, and that he paid all his bills in that manner, by drafts on Nelson; that the plaintiff knew that circumstance, and took the draft without any objection; and that if he had applied to Nelson, that it would have been paid. This evidence was relied on as a discharge, and bar to the action.

Shepherd, for the plaintiff, contended that the only mode by which this could operate as a bar to the action was by taking the draft in question as a bill of exchange; in which case, under St. 3 & 4 Anne, c. 9, § 7, it is declared that if any person shall accept a bill of exchange, in satisfaction of a debt, that the same shall be deemed a full and sufficient discharge, if the person so accepting such bill for his debt shall not take his due course, by endeavoring to get the same accepted and paid, and making his protest for nonacceptance or nonpayment; but he contended that in point of substance it was not a bill of exchange, but a mere request to pay money, not accepted by Nelson, or such as could put the plaintiff into any better situation with respect to his demand. But, if it was taken as a bill of exSM.& M.B.& N. (2D ED.)-4