borne.' But this is a different case. Here, by the terms of the note, the whole amount is to become payable on default being made in pay ment of the first instalment. Does the original three days' grace apply to that payment of the whole amount, the payment of the second instalment being by the contract accelerated in that event? If there be no default in payment of the first instalment, the defendant is entitled to three days' grace on the second: if he makes default, is he to have the same privilege? If so, the declaration would be bad for not averring presentment, the second payment being in the nature of a forfeiture. [PARKE, B. No: he must take care to pay the first instalment when due, and, if he makes default in doing so, he contracts to pay the whole.] Then what is the liability of the indorser? Is he liable in such case to the payment of the whole? or ought he not to have the same opportunity of paying the first instalment, and saving the forfeiture, as the maker had? His contract is to pay each instalment as it becomes due, if the maker does not; but he has no opportunity of paying the first and saving the forfeiture. [PARKE, B. Nor has the indorser of a bill ever any opportunity of paying by the acceptor.] But there he knows what he has to pay here there is a different contract as to the maker and the indorser. [LORD ABINger, C. B. No: the indorser promises that the maker shall pay the first instalment, or, if he does not, that he shall pay the whole. PARKE, B. He is responsible for the maker's performing the whole of his contract.] The accelerated payment of the second instalment is in the nature of a penalty, for which subsequent parties cannot be liable. The liability of the indorser ought not to be made to depend upon a contingency arising upon the act of the maker: it is of the essence of such an instrument that every party to it shall know what amount he is to provide for. Hance, contra, was not called upon. LORD ABINGER, C. B. Suppose the case of a note payable ten days after sight: there the subsequent parties do not know when they are to be called upon. I think there is no ground for saying the defendant is not liable. PARKE, B. Now to hold that actions could not be maintained upon Each notes as this would be to impugn all the established practice. Almost every note payable by instalments has such a condition. It is not a contingency: it depends on the act of the maker himself; and, on his default, it becomes a promissory note for the whole amount. The point was in effect determined in Oridge v. Sherborne.1 GURNEY, B., and ROLFE, B., concurred. Judgment for the plaintiff. 1 11 M. & W. 374. 2 Hogg v. Marsh, 5 Up. Can. Q. B. 319; Heard v. Dubuque Bank, 8 Nebr. 10 Kirk v. Dodge Ins. Co., 39 Wis. 138, accord.- ED. MILLER v. BIDDLE AND ANOTHER. IN THE EXCHEQUER, Nov. 16, 1865. [Reported in 13 Law Times Reporter, 334.] THIS was an action brought in the Mayor's Court, London, upon a promissory note, and was tried before the Recorder. The facts of the case were as follows: The note made by the defendants was in the following form: "£260. LONDON, 22d of February, 1865. "We jointly and severally promise to pay to Henry Miller, Esq, the sum of £260 by the following instalments: namely, £130 on the 22d of May, 1865, and the sum of £130 on the 22d day of August, 1865. In default of payment of the first instalment, the whole amount payable under this note to become due and payable. "C. MADDER. "W. BIDDLE." The first instalment of £130 was not paid upon the 22d of May, and thereupon a garnishee summons was issued on the 23d of May against the Temple Bar Branch of the Union Bank of London, where Biddle kept an account for the whole sum of £260. The defendants appeared, and the attachment was dissolved upon the 24th of June. Upon the 25th of May, the defendant Madder paid the sum of £130 as the first instalment upon the note, for which the plaintiff accordingly gave him credit in his particulars. Upon these facts appearing at the trial, it was contended upon the part of the defendants that the note in question was within the Statute 3 & 4 Anne, c. 9, and that the defendants were therefore entitled to three days' grace for the payment of the first instalment. A verdict was thereupon directed for the defendants, leave being reserved to the plaintiff to move to set the verdict aside and have it entered for himself for the sum of £130 and interest, upon the ground that no days of grace were allowable on the instalments of the promissory note sued on, the same being a non-negotiable instrument. A rule nisi having been obtained accordingly, Warton showed cause against the rule. The statute of Anne has always received a liberal construction. The omission of the words, 66 or order" or "or bearer," and the fact that the note was payable by instalments, makes no difference as to its negotiability. The defendants were entitled to the days of grace for the payment of each instalment; and even if not for the first instalment, then for the payment of the whole becoming due earlier by default. He cited Smith 8 . Kendall, Oridge v. Sherborne, Carlon v. Kenealy, Rawlinson v. Stone, Bentley v. Northhouse, Milne v. Graham, Hill v. Lewis, Brown v. Harraden; Byles on Bills, 191, n. Keane, Q. C., and Philbrick supported the rule. An instrument by which, at a certain date, in one event a sum of £130 becomes payable, and in another a sum of £260, cannot be a negotiable instrument within the statute of Anne, since a promissory note must be an absolute promise; and the payment of the larger sum was enforceable only at the option of the holder. They cited Carlos v. Fancourt.* Cur, adv. vult. POLLOCK, C. B., now delivered judgment. This was an action in the Mayor's Court, tried before the Recorder, upon a promissory note not made payable to "order" or "bearer," and payable by instalments, with a condition that if any instalment were not duly paid the whole sum should become due immediately. Leave was reserved to move to set aside the verdict, on the ground that the days of grace were not allowable on such an instrument. The court granted a rule. It turns out that there is a case of Carlon v. Kenealy, which decides the express point; namely, that the whole sum becoming due on default in payment of one instalment is no objection to the negotiability of the note. A previous case, Oridge v. Sherborne, had decided that a note payable by instalments was an assignable instrument within the statute of Anne, and that the maker of such a note is entitled to. the days of grace. The majority of the court are of opinion that the case of Carlon v. Kenealy concludes this case, and therefore that the rule must be discharged. Had I decided now as a judge at Nisi Prius, or if my decision would have the effect of a judgment, I should consider the case of Carlon v. Kenealy binding on me also; but, as it is not so, I think it my duty to dissent from the opinion of the majority of the court, in order to give to the plaintiffs an opportunity of appealing. I am of opinion that the statute of Anne was intended to apply only to such instruments as are properly negotiable, not to mere agreements to pay to A. There is a great difference between holding that a note is a negotiable instrument, notwithstanding it is payable by instalments, and holding that it is a negotiable instrument when it contains a stipulation by which the whole becomes immediately due 8 M. & M. 66. 16 T. R. 123. 2 11 M. & W. 874. 45 T. R. 482. "Lord Kenyon, C. J., said: 'If this were res integra, and there were no decision upon the subject, there would be a great deal of weight in the defendant's objection; but it was decided in a case in Lord Raymond's time (Burchell v. Slocock, 2 Ld. Raym. 1545), on demurrer, that a note payable to B., without adding or to his order' or 'to bearer,' was a legal note within the Act of Parliament. It is also aid in Marius that a note may be made payable either to A. or bearer, A. or order, on defau.t in payment of one instalment. In Carlon v. Kenealy, the court thought that Oridge v. Sherborne concluded them. I think that was not the case, though their decision is none the less binding than if Oridge v. Sherborne had turned on the same point. If this were res integra, I should be of opinion that this instrument was not within the statute. The custom of merchants has nothing to do with any but negotiable instruments, and I feel confident that, if the question could come to be decided with respect to a bill of exchange, there would be found to be no custom of merchants in the case of a bill of exchange with such a stipulation as that contained in this note, for I think no such bill of exchange ever existed, or was known among merchants as a negotiable instrument. Then, as the statute of Anne was intended to give to promissory notes the advantages of bills, and to render the custom of merchants applicable to them, if there be no such custom as to a bill, there could be none as to a note. I should not dissent if the effect of that dissent would be a judgment contrary to what has already been decided in this court, but as it will not so operate, but only give to the plaintiffs the opportunity of appealing, I think I am right in dissenting. Rule discharged. or to A. only. In addition to these authorities, I have made inquiries among different merchants respecting the practice in allowing the three days' grace, the result of which is that the Bank of England and the merchants in London allow the three days' grace on notes like the present. The opinion of merchants, indeed, would not govern this court in a question of law; but I am glad to find that the practice of the commercial world coincides with the decision of a court of law. Therefore I think that it would be dangerous now to shake that practice, which is warranted by a solemn decision of this court, by any speculative reasoning upon the subject."" Smith v. Kendall, 6 T. R. 124. Burchell v. Slocock, referred to by Lord Kenyon, was decided in 1728, and was followed in 1736 by Moor v. Paine, C. T. Hard. 28; but, in Chamberlyn v. De la Rive, 2 Wils. 353, decided in 1767, and in Dawkes v. Deloraine, 3 Wils. 207, decided in 1771, the court declined to pass upon the point whether negotiable words were essential to the validity of a bill. The authority of Smith v. Kendall has, however, been generally recognized. Bishop v. Chambers, 1 Hud. & B. 433; Kendall v. Galvin, 15 Me. 131; Bates v. Butler, 46 Me. 387; Duncan v. M'd. Sav. Inst., 10 G. & . 299; Wells v. Brigham, 6 Cush. 6; Downing v. Backenstoes, 3 Cai. 137; Goshen Co. v. Hurtin, 9 Johns. 217; Dutchess Co. v. Davis, 14 Johns. 238; Kimball v. Huntington, 10 Wend. 675; Coursin v. Ledlie, 81 Pa. 506; Averett v. Booker, 15 Gratt. 167. But see contra, Backus v. Danforth, 10 Conn. 297; Bristol v. Warner, 19 Conn. 7. -ED. PHILADELPHIA BANK v. NEWKIRK. IN THE DISTRICT COURT OF PHILADELPHIA, DEC. 19, 1840. THIS was an action brought by the Philadelphia Bank against Garret Newkirk and Stephen S. Newkirk, copartners in trade, under the firm of G. Newkirk & Son, at September term, 1840, No. 1133. The plaintiffs filed the following copy of a promissory note, on which the suit was brought: "$2,111.98. - PHILADELPHIA, March 13, 1839. "Twelve months after date, we promise to pay to the order of Heberton & Hibler twenty-one hundred and eleven dollars ninetyeight cents, without defalcation, for value received; payable at the Bank of the State of Missouri at St. Louis (current rate of exchange to be added). "No. 1009. (Indorsed) (Signed) "HEBERTON & HIBLER. "G. NEWKIRK & SON." BAIRD & FARRELL. The defendants filed the following affidavit of defence: "Garret Newkirk, a defendant in the above case, being duly sworn, deposes and says he has good and sufficient defence to the above action. That the note on which the above suit is brought was sent by the Philadelphia Bank for collection to the Bank of the State of Missouri, which institution had ordered that all bills or drafts deposited in its hands for collection would be required to be paid in specie or its own notes. Notice was given to the plaintiffs of this order, and they agreed to withdraw the note from the Bank of the State of Missouri, and deposit it in another institution which received in payment the currency of the place, with the difference of exchange added; notwithstanding the note was suffered to remain in the Bank of the State of Missouri. "At maturity of the note, the currency of the place, with exchange added, was tendered in payment, and refused. The neglect therefore of the plaintiffs to perform their stipulation was the cause of the nonpayment of the note. "Further, the plaintiffs have no right of action against the defendants as indorsers, the note not being a negotiable instrument, as the sum for which it is drawn is not clearly expressed in the body of it; but it is uncertain and contingent, it being stipulated in the body of the note that the current rate of exchange is to be added. And |