mortgage stamp after the note was made, and that that stamp would have been sufficient (Stat. 55 Geo. III. c. 184, sched. part 1, Mortgage) if the payee of the note himself had sued upon the note, yet, as the security has been assigned over, an additional stamp of £1 158. was necessary (Stat. 3 Geo. IV. c. 117, § 2); for the assignment of the note is an assignment of the equitable mortgage contained in the noto. Thirdly, this was not an assignable promissory note, under Stat. 3 & 4 Anne, c. 9, § 1. It was an agreement, by which the maker undertook to pay Johnson the sum mentioned in the note; and John. son undertook, on such payment, to deliver back the deeds. While the instrument was in the hands of the payee, the maker was entitled to require the redelivery of the deeds upon the payment of the money, and was not bound to pay if that redelivery were refused. It never could have been the intention of the parties that Johnson should have a right to hand over the defendant's title-deeds, and that they should pass from hand to hand; nor could Johnson transfer the note without the deeds; for the defendant had a right to insist upon the delivery of the deeds from the person who had the note. It can make no difference that the deeds had been delivered up to the defendant before the indorsement; for a note which is not transferable at the time it is made is not rendered so by any subsequent event. Hill v. Halford.1 The present plaintiff cannot be in a better situation than Johnson. An agreement to pay money on redelivery of deeds cannot constitute a promissory note under the statute of Anne, any more than a conditional order to pay would be a bill of exchange within the custom of merchants: the two securities are placed on the same footing by the statute. [LITTLEDALE, J. In the case of a mortgage, or a deposit, the debt may be sued for by the mortgagee without delivering up the deeds. COLERIDGE, J. How can a collateral security fetter the principal security?] The securities are given by the same instrument; and the effect of the one is therefore controlled by the other. [He then commented upon the evidence, and upon the remarks made upon it by the Lord Chief Baron to the jury.]

LORD DENMAN, C. J. With respect to the admissibility of the note in evidence, if it be a promissory note, the stamp is right. And there is nothing to qualify its character. There is only a memorandum added of something else; but that is not imported into the main agreement.

LITTLEDALE, J. This is an absolute promissory note; and there is no qualification. There is a memorandum, that deeds are deposited as a collateral security; but, as a note, the instrument is quite valid

1 2 B & P. 413.

without a mortgage stamp. Besides, the restriction, which prohibits stamping a promissory note after it is made, applies only to the promissory note stamp. The fact that an instrument, which, in the character of a mortgage, may be stamped after it is made, contains also a prom. issory note, amounts to nothing. The meaning of the legislature was, merely, that parties should not take their chance on a promis. sory note by delaying the stamping till they wanted to produce it in evidence as a promissory note; but that does not prevent a mort gage, which happens also to be a promissory note, from having a mortgage stamp put on after it is made. Butts v. Swan1 was a very different case. There the agreement stamp, put on after the instrument was made, was held insufficient, because the order to pay the money was so incorporated with the instrument that the latter could not be used without calling in aid its operation as a promissory note. We need not enter into the question, whether it be necessary that there should be an assignment stamp. I do not know that an assignee of this instrument could at law avail himself of it, against the maker, as a mortgage.

PATTESON, J. This is not the less a promissory note, from its being also an agreement of another kind. The cases cited by Mr. Whitehurst apply merely where there has been no promissory note stamp before the making.

COLERIDGE, J. If this be a promissory note, no difficulty remains. It is not the less a promissory note, from a memorandum of another kind being added, importing that a collateral security has also been given.

The court took time for consideration as to the other grounds of motion; and afterwards (May 5th) the rule was Refused.2

1 2 B. & B. 78.

2 Fancourt v. Thorne, 9 Q. B. 312; Brill v. Crick, 1 M. & W. 232; Trotter v. Shell, Mor. Dict. Decis. 1402; Fleckner v. U. S. Bank, 8 Wheat. 338; Early v. McCart, 2 Dana, 414; Maskell v. Haifleigh, 8 La. An. 457; Nott v. Watson, 11 La. An. 664; Treat v. Cooper, 22 Me. 203; Union Ins. Co. v. Greenleaf, 64 Me. 123; Branning v. Markham, 12 All. 454; Taylor v. Curry, 109 Mass. 36; Wright v. Irwin, 38 Mich. 82; Matthews v. Crosby, 56 N. H. 21; Ellet v. Britton, 6 Tex. 229; Ward v. Ferrigo, 33 Wis. 143, accord. - ED.

A. LEONARD v. MASON.

IN THE SUPREME COURT OF JUDICATURE, NEW YORK, OCTOBER, 1828

[Reported in 1 Wendell, 522.]

ERROR from the Onondaga Common Pleas. A. Leonard sued Mason in a justice's court, on an order for the payment of money accepted by Mason. The plaintiff held a promissory note against one N. Leonard for $34.48, underneath which was written an order or bill of exchange, in these words:

"Levi Mason, Esq., please pay the above note, and hold it against me in our settlement. N. LEONARD."

The justice gave judgment for the defendant, and the plaintiff appealed to the Onondaga Common Pleas. On the trial in that court, the note, with the order written thereunder, was produced, and a presentment to, and a parol acceptance and promise to pay by, the drawee proved. The Common Pleas nonsuited the plaintiff, holding the promise of the defendant to be within the Statute of Frauds. J. R. Lawrence, for plaintiff in error. The order was in the nature of a bill of exchange, and a parol acceptance was good. Cowen's Tr. 84; 15 Johns. R. 6; 4 Camp. 393; Chitty on Bills, 76; 2 Wheaton, R. 66; Strange, 1000; 3 Burr. 1886. After acceptance, the order was a chose in action, on which an assignee might have maintained a suit, on showing a promise to pay. 1 Cowen, 13; 6 id. 151.

B. Davis Noxon. This was a promise to pay the debt of another, and therefore within the Statute of Frauds, as there was no consideration shown for the promise. 3 Johns. R. 210; 4 id. 422. The order cannot be considered a bill of exchange. 6 Cowen, 108.

Gridley, in reply. This case is clearly distinguishable from that in 6 Cowen. The bill here is not payable on a contingency. There was no difficulty in the taking up the note. The bill and note were on the same paper.

By the Court, SAVAGE, C. J. The only question is, whether the crder which the defendant accepted is a good bill of exchange: if so, a parol acceptance is good. It is supposed that this case depends on the same principles as the case of Cook v. Satterlee & Satterlee.' The rule there recognized is that a bill of exchange must be for the payment of money, and nothing else. In that case, the drawees were required to pay a certain sum of money, and take up a note given by the drawer to a third person. Here it is to pay a note, which is referred to merely to ascertain the amount; and the retaining the 16 Cowen, 108. 2 See Commw. Ins. Co. v. Whitney, 1 Met. 21. — ED

2

note as a voucher is no more the performance of another act beside the payment of the money, than the retaining the order itself for the same purpose.

The Court erred. The judgment must be reversed, and a venire de novo is awarded to Onondaga Common Pleas.1

I clause making su surement a higher

"

3191d Batis

OVERTON v. TYLER AND ANOTHER.

IN THE SUPREME COURT, PENNSYLVANIA, JULY TERM, 1846.
[Reported in 3 Barr, 846.]

IN error from Common Pleas of Bradford County.

July 15. This was a feigned issue, directed to test the right of the parties to the proceeds of a sheriff's sale of the personal property of L. Smith, in which a special verdict was found, in substance, as follows: L. Smith drew a promissory note, falling due June 30, 1845, for discount at bank, which was indorsed for him by Tyler et al. as sure"ties. While this note was maturing, he gave to Tyler the following instrument:

"$1,000.

ATHENS, Feb. 15, 1845.

"For value received, I promise to pay Francis Tyler and Levi Westbrook or bearer one thousand dollars, with interest, by the first day of June next. And I do hereby authorize any attorney of any court of record in Pennsylvania to appear for me, and confess judgment for the above sum to the holder of this single bill, with costs of suit, hereby releasing all errors, and waiving stay of execution and the right of inquisition on real estate; also waiving the right of having any of my property appraised which may be levied upon by virtue of any execution issued for the above sum.

L. SMITH."

This was to secure them as indorsers of the above-mentioned note On this, a judgment was entered on the 10th of March; and an execution was left with the sheriff on the 2d of June. Under this, the money was paid into court arising from the sale of personal property. Prior to the sale, which was on the 2d and 3d of July, Overton left with the sheriff an execution on a judgment in his favor. The jury found that Tyler had paid the first-mentioned note, after protest, and on or before the 3d of July.

The Court (CONYNGHAM, P. J.) gave judgment for Tyler; and this writ of error issued.

1 Conf. Cook v. Satterlee, 6 Cow. 108. - ED.

Case and Overton, for plaintiff in error. The days of grace are part of the contract. 1 Pet. S. C. Rep. 25; Thomas v. Shoemaker.1 Nor will the fact that a warrant of attorney is attached alter or in any way affect that right: it is to be construed as if the note and the warrant were distinct instruments. A suit, then, not being maintainable before the 5th of June, of course no execution could issue for the same debt at an earlier period.

Elwell and Williston, contra, contended that, by the agreement, the judgment was to be entered as for an amount due on the 1st of June, and that the character of the note, if such it was, merged in that contract. But there never was a privilege of the days of grace: the judgment could not pass from hand to hand; and subsequent holders would certainly be bound to defalk any payments made on account of the judgment. These are principles irreconcilable with the rules regulating commercial paper. 3 Penn. Rep. 374; 1 Watts, 135; 1 Miles, 162; 6 Johns. Ch. Rep. 281; 2 Term Rep. 640.

GIBSON, C. J. No case like the present, nor any thing from which a principle applicable to it can be drawn, is found in the books. The note is for the payment of money: it is payable to bearer, and it is payable absolutely; yet it is obvious that it was not intended to be negotiable in a commercial sense, and that the maker was not to have the usual days of grace. The debt is still between the original parties; and the contract by which it was created is to be interpreted, like any other, by their actual meaning. If they meant to make, not a promissory note within the statute of Anne, but a special agreement, with power to enter up judgment on it, they are bound by the result as they themselves viewed it. Such is one of the principles of Patterson v. Poindexter and Boker v. Hazard, in which, however, there was no express promise. Nor would a subsequent holder take the paper on any other terms than those expressed in it. It has in it all the parts of a promissory note; but it has more: it contains not only a warrant to confess judgment with a release of errors, but an agreement to waive appraisement and stay of execution. But a negotiable pill or note is a courier without luggage. It is a requisite that it be framed in the fewest possible words, and those importing the most certain and precise contract; and, though this requisite be a minor one, it is entitled to weight in determining a question of intention. To be within the statute, it must be free from contingencies or conditions that would embarrass it in its course; for a memorandum to control it, though indorsed on it, would be incorporated with it, and destroy it. But a memorandum which is merely directory or col..