BANK OF ORLEANS v. MERRILL, PRESIDENT OF THE CLINTON BANK.

IN THE SUPREME COURT, NEW YORK, JANUARY, 1812.

[Reported in 2 Hill, 295.]

ON demurrer. The Clinton Bank, an association formed under the general banking law, issued a certificate of deposit, payable to the order of S. Benedict at six months, with interest, of which the plaintiff was indorsee. The question raised by the pleadings was, whether an action could be maintained against the bank on this instrument.

N. Hill, Jr., for the defendant.

C. M. Jenkins, for the plaintiff.

Per Curiam. The instrument in question is in effect a negotiable' promissory note. We cannot sanction it as the basis of a right of recovery, without disregarding the provisions of the statute against the issue of a spurious and illegal currency. The case is within the principle of Safford v. Wyckoff, and Smith & Warner v. Strong. The defendant must have judgment.

1 Hill, 11.

Ordered accordingly.

2 2 Hill, 241.

Miller v. Austen, 13 How. 218; 5 McL. 153, s. c.; Welton v. Adams, 4 Cal. 37; Brummagim v. Tallant, 29 Cal. 503; Poorman v. Mills, 35 Cal. 118; Kilgore v. Bulkley, 14 Conn. 383; Carey v. McDougald, 7 Ga. 84; Peru Bank v. Farnsworth, 18 Ill. 563; Laughlin v. Marshall, 19 Ill. 390; Swifty v. Whitney, 20 Ill. 144; Hunt v. Divine. 37 Ill. 137; Drake v. Markle, 21 Ind. 433; Lafayette Bank v. Ringel, 51 Ind. 393; Bean v. Briggs, 1 Iowa, 488; Blood v. Northup, 1 Kans. 28; Fells Point Co. v. Weedon, 18 Md. 320; Cate v. Patterson, 25 Mich. 191; Tripp v. Curtenius (Michigan, 1877), 9 Chic. L. N. 339; Fultz v. Walters, 2 Montana, 165; Leavitt v. Palmer, 3 Comst. 19, 34 (semble); Barnes v. Ontario Bank, 19 N. Y. 152; Pardee v. Fish, 60 N. Y. 265; Frank v. Wessells, 64 N. Y. 155; Johnson v. Henderson, 76 N. Ca. 227 (semble); Moore v. Gano, 12 Oh. 300; Howe v. Hartness, 11 Oh. St. 449; Bellows Falls Bank v. Rutland Bank, 40 Vt. 377; Lindsey v. McClelland, 18 Wis 481, (semble), accord.

Austin v. Miller, 4 W. L. J. 527; Patterson v. Poindexter, 6 W. & S. 227; Chara ley v. Dulles, 8 W. & S. 353; Lebanon Bank v. Mangan, 28 Pa. 452, contra.

Conf. Payne v. Gardiner, 29 N Y. 146; Hotchkiss v. Mosher, 48 N. Y. 478

DANIEL W. CURRIER AND ANOTHER v. FREDERICK LOCK

WOOD.

IN THE SUPREME COURT OF ERRORS, CONNECTICUT, OCTOBER

TERM, 1873.

[Reported in 40 Connecticut Reports, 349.]

ASSUMPSIT, upon a written instrument described as a note, with the common counts; brought originally before a justice of the peace, and appealed to the Court of Common Pleas of Fairfield County, and tried in that court, upon the general issue closed to the court, with notice that the action was barred by the Statute of Limitations, before Brews ter, J. The suit was brought June 1, 1872.

In the special count, the plaintiffs averred "that the defendant, in and by a certain writing or note, under his hand by him well executed, dated the 22d day of January, 1863, promised the plaintiffs to pay to them for value received the sum of seventeen dollars and fourteen cents, as by the said writing or note ready in court to be shown appears."

Upon the trial, the plaintiffs offered in evidence the following writing:

"$17.14.

BRIDGEPORT, Jan. 22, 1863. "Due Currier & Barker seventeen dollars and fourteen cents, value received. FREDERICK LOCKWOOD." At the time the note was given, the plaintiffs were partners under the name of Currier & Barker.

The plaintiffs claimed, as matter of law, that the writing was a promissory note not negotiable under the statute, and was not barred until seventeen years from its date; also that the facts proved an acknowledgment of the debt, and a new promise, which took it out of the Statute of Limitations.1 The defendant claimed adversely to each of these claims.

The court ruled adversely to the claims of the plaintiffs, and held that the debt was barred by the Statute of Limitations, and rendered judgment for the defendant to recover his costs.

The plaintiffs moved for a new trial.

Thompson, in support of the motion.

There is no variance. The writing imports a "promise to pay," and it is set forth according to its legal effect. Smith v. Allen; Edwards on Bills, 131; 1 Am. Lead. Cas. (5th ed.) 383. The acknowledgment

1 So much of the case as relates to the waiver of the Statute of Limitations 1 mitted.-ED.

4

of indebtedness implies a promise to pay, and constitutes a promissory note. Cummings v. Freeman,1 Marrigan v. Page, Fleming v. Burge,' Brenzer v. Wightman, Brewer v. Brewer, Lowe v. Murphy, Johnson v. Johnson, Harrow v. Dugan, Kilgore v. Bulkley. If the instrument is a note not negotiable," it is not barred by the Statute of Limitations, such notes running seventeen years.

Lockwood, contra.

8

A note must contain a legal promise for the certain payment of a certain sum. 1 Parsons on Notes and Bills, 23, 24; Story on Promis sory Notes, § 14; Bouvier's Law Dict., Due Bill, Promissory Note, and IO U. An acknowledgment of a debt is not a promissory note. 1 Parsons on Notes and Bills, 25; Byles on Bills, 11, 28; Smith v. Allen, Beeching v. Westbrook,10 Melanotte v. Teasdale," Bowles v. Lambert.12 The note must contain and must express the promise of the debtor to pay the money. 1 Parsons on Notes and Bills, 25.

SEYMOUR, C. J. The first question in this case is whether the writing sued upon is a promissory note within the meaning of those words in the Statute of Limitations. The statute is as follows: "No action shall be brought on any bond or writing obligatory, contract under seal, or promissory note not negotiable, but within seventeen years next after an action shall accrue." The instrument sued upon is as follows:

$17.14.

BRIDGEPORT, Jan. 22, 1863. "Due Currier & Barker seventeen dollars and fourteen cents, value received. FREDERICK LOCKWOOD." Promissory notes not negotiable are by the statute above recited put upon the footing of specialties in regard to the period of limitation, and for most other purposes such notes have been regarded as specialties in Connecticut. The instrument, however, to which this distinction has been attached is the simple express promise to pay money in the stereotyped form familiar to all. The writing given in evidence in this case is a due bill, and nothing more. Such acknowledgments of debt are common, and pass under the name of due bills. They are informal memoranda, sometimes here, as in England, in the form "I O U." They are not the promissory notes which are classed with specialties in the Statute of Limitations. The law implies, indeed, a promise to pay from such acknowledgments, but the promise is sim ply implied, and not express. It is well said by Smith, J., in Smith

12 Humph. 143.

7 Watts & Serg. 264. 7 Minor (Ala.), 263. 108 Mees & Wels. 412.

2 4 id. 247.
56 Ga. 588.

8 6 Dana, 841.

Il 13 id. 216.

3 6 Ala. 378.

6 9 id. 341.

9 14 Conn. 883,

12 54 III. 237.

v. Allen, "Where a writing contains nothing more than a bare ac knowledgment of a debt, it does not in legal construction import an express promise to pay; but where a writing imports not only the acknowledgment of a debt, but an agreement to pay it, this amounts to an express contract."

In that case, the words " on demand" were held to import and to be an express promise to pay. That case adopts the correct principle; namely, that to constitute a promissory note there must be an express as contradistinguished from an implied promise. The words "on demand" are here wanting. The words "value received," which are in the writing signed by the defendant, cannot be regarded as equivalent to the words "on demand." The case of Smith v. Allen went to the extreme limit in holding the writing there given to be a promissory note; and we do not feel at liberty to go further in that direction than the court then went.

A new trial is not advised.

In this opinion PARK and CARPENTER, JJ., concurred.1

1 FOSTER, J., with whom Phelps, J., concurred, delivered a dissenting opinion, the material part of which is contained in the following extract:

"Dissents FOSTER, J. That the paper before us is more correctly described as a due bill than as a promissory note is unquestionable. That it would be regarded among business men, in the daily transactions of life, as conferring the same rights and imposing the same liabilities as a promissory note, seems to me equally unquestionable. It was so regarded by the parties to it. It was so treated and so spoken of whenever it was alluded to. This is manifest from the record: The defendant came into the store of said Barker (one of the plaintiffs), and said to him, "Have you that note?" or, "Where is that note?" and that he "wished to settle it." Barker told him "the note was in Mr. Stevens's hands," &c.' Any writing importing a debt, and an obligation to pay it, especially if it contains the words 'for value received,' is, in the popular judgment, a note. This instrument is clearly of that character. It was clearly the intent of the parties so to make it; and it is evident that they supposed they had so made it. To hold otherwise would seem to be contrary to the understanding and intent of the parties."

The following cases accord with the decision in the principal case: McLain v. Rutherford, Hempst. 47 (semble); Gray v. Bowden, 23 Pick. 282; Davis v. Allen, 8 Comst. 168 (semble); Hotchkiss v. Mosher, 48 N. Y. 478 (semble); Read v. Wheeler, 2 Yerg. 50 (overruled), accord.

But see Fleming v. Burge, 6 Ala. 373; Lowe v. Murphy, 9 Ga. 338; Jacquin v. Warren, 40 Ill. 459 (semble); Kalfus v. Watts, Litt. (S. C.) 197; Finney v. Shirley, 7 Mo. 42; McGowen v. West, 7 Mo. 569; Payne v. Gardiner, 29 N. Y. 146 (semble); Cummings v. Freeman, 2 Humph. 143, contra.

Conf. Brewer v. Brewer, 6 Ga. 587; Bowles v. Lambert, 54 Ill. 287. - ED

SECTION III.

The Order or Promise must be unconditional

SMITH v. BOHEME.

IN THE KING'S BENCH, MICHAELMAS TERM, 1714.

[Reported in Gilbert, 93.]

ERROR, judgment in C. B. upon a note to pay £72 upon demand for value received, or render the body of A. B., &c., to the Fleet before such a day, laid upon the Statute of Promissory Notes.

Serjeant Richardson, for the plaintiff in error, assigned for error, that this note being to become surety for a debt only upon a contingency was not within the statute, which designed only to give a currency to notes absolutely for money.

That it cannot be made at common law; for if a man will bring his action upon a statute, he must rely upon that title, and cannot assist it by restoring back to common law. 9 Rep. 74; Noy, 147.

Serjeant Cheshire, contra. The intent of the act was only to make the note in nature of a specialty, and serve instead of an express consideration; and there will be no reason to distinguish this from the common cases, for at first it was only a note payable within such a time after demand; and now the defendant has not rendered that it is out of the case, and it must be taken as an absolute note for the money.

But, supposing it to be out of the statute, it will be good at common law. Pro valore recepto imports a consideration, assumpsit pro opere et labore facto makes a good consideration; so pro præmiss. 2 Lev. 153. And the mention of the statute will not hurt. Vent. 103. An action for taking away his wife, contra formam stat., was beld well, though no statute in the case, and those words were rejected.

Richardson, reply. This agreed not to be an indorsable note from the time of making it, which is the intention of the statute, and nothing subsequent can make it so.

Pro valore recepto: here is no averment of consideration, but only a recital that there is such a note.

As to the case in Vent., there is a difference between the mention of a statute where there is none at all and where there is one; but the plaintiff has mistaken his case upon it.

PARKER, C. J. It is not laid that he made such a note for value