terest are uncertain, and depend upon the election of the mortgagor, who would seem, from the memorandum upon the note itself, to be the maker of the note. But, if he were a third person, it would not aid the plaintiff. In either alternative, the contract, not being a promise to pay a fixed sum of money at a definite time, lacks the essential quality of a negotiable promissory note, and cannot be sued upon as such. Way v. Smith,1 Hubbard v. Moseley,2 Story on Notes. Exceptions sustained. JACKSON A. JORDAN v. SAMUEL TATE, SR. IN THE SUPREME COURT, OHIO, DECEMBER TERM, 1869. [Reported in 19 Ohio State Reports, 586.] Costarry of ti MOTION for leave to file a petition in error to reverse a judgment the District Court of Montgomery county, affirming the judgment of the Court of Common Pleas. BY THE COURT. The negotiable character of a promissory note is not affected by the fact that it is made payable by its terms on or before a future day therein named. Though the maker has a right to pay such note at any time after its date, yet for all purposes of negotiation it is to be regarded as a note payable solely on the day therein named. Motion overruled.* 1 111 Mass. 523. 2 11 Gray, 170. 3 § 22. 4 Pemberton v. Hoosier, 1 Kas. 108; Mattison v. Marks, 31 Mich. 421; Helm sz u. Krolich, 36 Mich. 871; Bates v. LeClair, 49 Vt. 229, accord. Conf. Hubbard v. Mosely, 11 Gray, 170. — ED. SECTION VII. A Bill or Note must be certain in respect of Parties (a) DRAWER. M'CALL v. TAYLOR. IN THE COMMON PLEAS, MAY 26, 1865. [Reported in 34 Law Journal Reports, 365.] This cat re THE first count was against the defendant, as the acceptor of a bill of exchange for £300. The second count was on the same instrument as a promissory note, of which the defendant was alleged to be the maker. There were counts also for goods sold and delivered and or accounts stated. Pleas to the first count, a traverse of the acceptance; to the second count, a traverse of the making; and to the residue of the declaration, never indebted. At the trial before Byles, J., at the London sittings after Hilary term last, it appeared that the instrument declared on in the first and second counts was in the following form: "£300. "Four months after date, pay to my order the sum of three hundred pounds for value received. "To Captain TAYLOR, ship 'Jasper.'" There was no date to this instrument, nor the signature of any drawer; but there was written across it by the defendant these words: "Accepted, William Taylor." This instrument was given to the plaintiff by one Milne, the broker of the ship "Jasper," on account of goods supplied to such ship by the plaintiff. The defendant was the captain of the "Jasper;" but the jury found that the goods had not been supplied on his credit, and that there was no debt due from the defendant. The learned judge was of opinion that the instrument could not be declared on either as a bill of exchange or promissory note, and a verdict was accordingly entered for the defendant; but leave was reserved to the plaintiff to move to enter a verdict on either the first or second counts, if the instrument could be declared on as either a bill or note. A rule nisi to that effect having been subsequently obtained by Hannen, for the plaintiff, Is this a lack Day now showed cause. The instrument is neither a promissory note nor bill of exchange. It contains no promise by the defendant to pay any one, and it wants a drawer and payee to make it a bill of exchange; it is altogether an incomplete and imperfect instrument, and the case is not distinguishable from that of Stoessiger v. The SouthEastern Railway Company. There, one Cruttenden, being indebted to a Mr. Gould in more than £10, framed a document directed to himself, ordering himself three months after date to "pay to my order" the amount. The document had the stamp proper for a bill of exchange of that amount, and was in all respects like a bill of exchange, except that there was no drawer's name. Cruttenden wrote on it his acceptance, and caused it to be forwarded in a parcel directed to Gould, by a common carrier, in order that Gould might add his name as drawer. On an action against the carrier for the loss, the Court of Queen's Bench held that it was not a bill, order, note, or security for money, within the meaning of the Carriers Act, 11 Geo. IV., & 1 Will. IV., c. 68, § 1. Hannen and Lord, in support of the rule. The document may be treated as a promissory note. The case of Cruchley v. Clarance2 shows that where a bill of exchange is issued in blank for the name of the payee, a bona fide holder may insert his own name as the payee, and the drawer will be liable. In Miller v. Thompson, an instrument in the form of a bill of exchange drawn upon a joint-stock bank by the manager of one of its branch banks, by the order of the directors, was held to be properly declared upon as a promissory note. In Fielder v. Marshall, the instrument, which was in the form of a bill of exchange, was drawn by one A. Langstaff, and accepted by the defendant for a debt due from Langstaff to the plaintiff. The plaintiff's name was in the body of the instrument as payee, and in the corner at the foot of it the plaintiff's name and address were written; but the court considered the instrument as not addressed to any one, and treated it as a promissory note. The case of Peto v. Reynolds also furnishes an example of an instrument which was not good as a bill of exchange for want of a drawee, being considered good as a promissory note. [SMITH, J. There was there the name of a payee.] case. 4 The case of Armfield v. Allport strongly resembles the present There it was held that an instrument drawn in the form of a bill of exchange, payable to bearer, even if accepted in blank, and afterwards filled up by the drawer, may be declared upon by the 2 2 M. & S. 90. 1 3 El. & B. 549; s. c. 23 Law J. Rep. (N. 8.) Q. B. 293. 9 Com. B. Rep. N. s. 606; s. c. 30 Law J. Rep. (N. s.) C. P. 158. 427 Law J. Rep. (x. 8.) Exch. 42. indorsee as a promissory note made by the drawer and indorsed by by || the drawee. [WILLES, J. That case would seem to have been an application of the doctrine in Penny v. Innes, that a person who puts his name on the back of a bill may be treated as a new drawer; but that doctrine is inapplicable to notes by reason of the Stamp Act.] That case of Armfield v. Allport is certainly rather obscure; but the court there seemed to have considered that they were justified in treating the instrument as a promissory note. Where a payee is a fictitious person, the bill may be declared on as payable to bearer. Byles on Bills, 8th edit. 73; Minet v. Gibson.1 ERLE, C. J. I am of opinion that this rule should be discharged. The declaration is on a bill of exchange, and also on the same instrument described as a promissory note. The instrument in question was in this form: [The learned judge read it.] It has no date and no drawer's name; but the defendant wrote his acceptance across it; and the question is, has the holder of such an instrument a right to declare on it either as a bill of exchange or promissory note? It certainly is not a bill of exchange, nor is it a promissory note; and there has been no case cited as an authority for its being considered as either a bill or note. It is, in fact, only an inchoate instrument, though capable of being completed. Let the party who has the authority to make it a complete instrument do so; but if he will not do this, he cannot sue on it. The case of Stoessiger v. The SouthEastern Railway Company is directly in point. In the other cases which have been referred to, where effect was given to the instrument, nothing more had to be done to make the instrument complete; and Do those cases are distinguishable from the present. The captain may possibly have given his acceptance for the necessaries supplied to the ship, and the plaintiff may have had authority to put his name as drawer; but that should have been shown by his doing so. As it is, he seeks to sue on it without putting his name to it as drawer; and it may be that the reason is, because he never had authority to insert a drawer's name. It is, however, sufficient for us to say that the instrument is inchoate and imperfect; and therefore there is no ground for making this rule absolute. WILLES, J., BYLES, J., and SMITH, J., concurred. 18 Term Rep. 481. 2 Stoessiger v. S. E. R. R. Co., 8 E. & B. 549, accord. Rule discharged See also Vyse v. Clark, 5 C. & P. 403; Tevis v. Young, 1 Met. (Ky.) 197, where the absence of a drawer's signature rendered the instruments inoperative. For additional cases properly belonging to this section, see Appendix, pp. 881884.- Er. A Bill or Note must be certain in respect of Parties (continued). (b) DRAWEE. · SHUTTLEWORTH v. STEPHENS. AT NISI PRIUS, CORAM LORD ELLENBOROUGH, C. J., JULY 21, 1808. [Reported in 1 Campbell, 407.] THE declaration was in the common form as upon a bill of exchange, drawn by the defendant on Messrs. John Morson & Co., payable to John Jenkins, and indorsed by him to the plaintiff. In support of the action, a paper writing, of which the following is a copy, was given in evidence: "Oct. 21, 1304. "Two months after date, pay to the order of John Jenkins £78 11s., value received. THOS. STEPHENS. "At Messrs. John Morson & Co." LORD ELLENBOROUGH held that this was properly declared on as a bill of exchange; and that Messrs. Morson & Co. might be considered as the drawees, although perhaps it might have been treated as a promissory note1 at the option of the holder." The plaintiff had a verdict.' GRAY v. MILNER. IN THE COMMON PLEAS, FEB. 9, 1819. [Reported in 8 Taunton, 789.] ASSUMPSIT. The action was brought by the indorsee of the following bill of exchange, against the defendant, as acceptor: "MAY 20, 1813. "Two months after date, pay to me, or my order, the sum of thirty pounds two shillings. W. SUSTANANCE. "Payable at No. 1 Wilmot Street, opposite the Lamb, Bethnal Green, London." 1 Mr. Justice Lawrence, having been applied to for leave to add a count to this declaration as on a promissory note, refused to interfere, saying that he thought it unnecessary. 2 See supra, p. 19, note 4.- Ed. Allan v. Mawson, 4 Camp. 115; Rex v. Hunter, R. & R. 511; Reg. v. Smith, Moody, C. C. 295 accord. -ED. |