very general; and, in order to bring a note within the description of that clause, it is only necessary,

First, that the note should be in writing;

Secondly, that it should be made and signed by the person promising to pay; and,

Thirdly, that there be an express promise to pay to another, or his order, or bearer. But, as to the time of payment, the act is silent; nor is there any particular form prescribed.

And, therefore, as to the first objection, that if a bill of exchange had been drawn in this manner it would not have been good. Supposing it to be true, I do not think that it follows that these promissory notes may not be within the general words of the statute, if they answer all the descriptions therein contained. However, for argu ment's sake, I will suppose that this consequence would hold; but we do not think that a bill of exchange drawn in this manner would be bad. Upon this head, it would be but misspending time to run over all the passages which have been cited out of the civil-law books in relation to bills of exchange, because I put a question to the counsel which will, I think, determine this point: whether there is any limited time mentioned in any of the books beyond which, if bills of exchange are made payable, they are not good; and it was agreed by the counsel that they could find no such rule, and I am sure I can find none. But if a bill of exchange be made payable at never so distant a day, if it be a day that must come, it is no objection to the bill. There is but one passage in the books wherein any notion to the contrary is so much as hinted at; and that is in Scacchia de Commerciis, where it is said that it had been formerly an objection against a bill of exchange, as contrary to the nature of it, that it was made payable at the end of seven months; but by his making use of the word "formerly," it is plain that in his opinion the law was then held to be otherwise. If, therefore, the distance of time would not have made a bill of exchange bad if drawn in this manner, since it is drawn at a time which must come, the only other objection that was made on this head was that in all bills of exchange there must be a par pro pari, which there cannot be in this case, because the value cannot be ascertained. But I shall show plainly that the value may be ascertained, when I come to the other objection that these are not negotiable notes.

Secondly, having answered the objections against these notes, considering them on the same foot as bills of exchange, I come now to the second objection, arising from the words and intent of the statute. And, first, I think that they are plainly within the words. They are made in writing; they are signed by the person promising to pay; and there is an express promise to pay to another, or his order; and,

as no time of payment is mentioned in the statute, the distance of time is no objection within the words of the act.

Let us see, therefore, in the next place, whether any objection arises against them from the design and intent of the act; though I think it would be pretty hard to construe a note to be not within the intent of an act when it is manifestly within the words of it, and the words of the act are plain and express. When the words of an act are doubtful and uncertain, it is proper to inquire what was the intent of the legis lature. But it is very dangerous for judges to launch out too far in searching into the intent of the legislature, when they have expressed themselves in plain and clear words. However, we think that these notes are within the intent as well as the words of the act. And, to show that they are so, I will here take notice of all the cases which were cited to the contrary, and will show that they all stand on a different foot, and are plainly distinguishable from the present. For they are all of them cases where either the fund out of which the payment was to be made is uncertain, or the time of payment is uncertain, and might or might not ever happen: whereas in the present case there is no pretence that the fund is uncertain, and the time of payment must come, because the father, after whose death they are made payable, must die one time or other. The case of Pearson v. Garrett was thus: the defendant gave a note to pay sixty guineas when he married B., and judgment was given for the defendant, because it was uncertain whether he would ever marry her or not; so the time of payment might never come. In the case of Jocelyn v. Le Serre, the bill was drawn on Jocelyn to pay so much every month out of his growing subsistence. How long that would last no one could tell, or whether it would be sufficient for that purpose; and therefore the bill was holden not to be good, because the fund was uncertain. In the case of Smith v. Boheme, the promise in the note was to pay £70, or surrender a person therein named; if, there fore, he surrendered the person, there was no promise to pay any thing, and therefore the note was uncertain and not negotiable. In the case of Appleby v. Biddolph, a promise to pay if his brother did not pay by such a time, held not to be within the statute, because it was uncertain whether the drawer of the note would ever be liable to pay or not. In the case of Jenney v. Herle, a promise to pay such a sum out of the income of the Devonshire Mines, held not a promise within the statute, because it was uncertain whether the fund would be sufficient to pay it. So, in the case of Barnsley v. Baldwyn, the promise was, as in the case of Pearson v. Garrett, to pay such a sum on marriage, and held not to be within the statute for the same reason.

1 4 Mod. 242, and Comb. 227.

And as these notes are plainly not within the intent of the statute, because not negotiable ab initio, so when the words themselves come to be considered they are not within the words of it, because the statute only extends to such notes where there is an absolute promise to pay, and not a promise depending on a contingency, and where the money at the time of the giving of the note becomes due and payable by virtue thereof (so are the words of the statute), and not where it becomes due and payable by virtue of a subsequent contingency which may perhaps never happen, and then the money will never become payable at all. And it can never be said that there is a promise to pay money, or that money becomes due and payable by virtue of a note, when, unless such subsequent contingency happen, the drawer of the note does not promise to pay any thing at all.

But the present notes, and those cases where such notes have been holden to be within the statute, do not depend on any such contingency, but there is a certain promise to pay at the time of the giving of the notes, and the money by virtue thereof will certainly become Jue and payable one time or other, though it is uncertain when that time will come. The bills therefore of exchange, commonly called billæ nundinales, were always holden to be good, because though these fairs were not always holden at a certain time, yet it was certain that they would be held. The case of Andrews v. Franklyn depends on the same reason; for there the note was to pay such a sum two months after such a ship was paid off, and held good because the ship would certainly be paid off one time or other. The case of Lewis v. Ord1 was exactly the like case, and determined on the same reason. As to the objection that these are not negotiable notes, because the value of them cannot be ascertained, the argument is not founded on fact, because the value of a life when the age of a person is known is as well settled as can be; and there are many printed books in which these calculations are made. But, if it were otherwise, the life of a man may be insured, and by that the value will be ascertained. And the same answer will serve to the objection which I before mentioned against such bills of exchange.

There was another objection taken, that the drawer might have died before his father, and then these notes would have been of no value; but there is plainly nothing in this objection, for the same may be said of any note payable at a distant time, that the drawer may die worth nothing before the note becomes payable.

We do not think that the averment of the death of the father before the indorsement makes any alteration, because we are of opinion that

1 Cunningh. Bills of Exchange, 113.

if the notes were not within the statute ab initio they shall not be made so by any subsequent contingency. But, for the reasons aforesaid, we are of opinion (and so was the Lord Chief Baron Parker) that the plaintiff is entitled to his judgment;1 and therefore the rule for arresting the judgment must be discharged.'

Demand an

WALKER, EXECUTOR OF WALKER, v. ROBERTS.

AT NISI PRIUS, CORAM CRESSWELL, J., SPRING CIRCUIT, 1842. [Reported in Carrington & Marshman, 590.]

pant.

Of payes is ASSUMPSIT by the plaintiff, as the executor of the payee, against the defendant as maker of a promissory note, dated February, 1831, for £19 19s. 11d., with interest, on demand, six months after notice. Plea: non assumpsit.

The note, which was proved to have been written by the defendant's wife, by his authority, was in the following form:

"FEBRUARY, 1831.

"William Walker lent to James Roberts £19 19s. 11d., to receive five per sent for the same £19 19s. 11d.; to pay on demand to the said William Walker, giving James Roberts six months' notice for the same. "Witness my hand,

"JAMES MARY ROBERTS."

It appeared that the interest had been paid to February, 1838, and that there had been six months' notice given, and a demand made after the six months' notice had expired.

J. G. Phillimore, for the defendant. I submit that this is an agreement to pay money on certain conditions, and is not a promissory note; and that it ought to be stamped as an agreement, and not as a promissory note, as it is.

CRESSWELL, J. I think it is a promissory note.

Verdict for the plaintiff."

This judgment was afterwards affirmed in the Court of King's Bench on a writ of error.

2 Str. 1217.

2 Roffey v. Greenwell, 10 A. & E. 222; Conn v. Thornton, 46 Ala. 587; Bristo. v. Warner, 19 Conn. 7; Mortee v. Edwards, 20 La. An. 236, accord.

See Richards v. Richards, 2 B. & Ad. 454. — ED.

3 Gaytes v. Hibbard, 5 Biss. 99 (semble); Goshen Co. v. Hurtin, 9 Johns. 217 (semble); Dutchess Co. v. Davis, 14 Johns. 238 (semble); Washington Ins. Co. v. Miller, 26 Vt. 77, accord.

Union Co. v. Jenkins, 1 Cai 381, contra - ED.

ALEXANDER v. THOMAS.

IN THE QUEEN'S BENCH, JANUARY 23, 1851.

[Reported in 16 Queen's Bench Reports, 333.]

ASSUMPSIT. The first count stated that defendant, on 19th November, 1839, made his bill of exchange in writing, and directed the same to one Shadwell, and thereby requested Shadwell, ninety days after sight, or when realized, of that his, the defendant's first bill of exchange, &c., to pay to the plaintiff, or order, £1256 138. 4d., value: received. Averment that the said bill was presented to Shadwell, and that he refused to accept, although the period of ninety days after presentment and sight thereof by him had elapsed, &c.

Plea that defendant did not make his bill of exchange modo et forma. Issue thereon.

On the trial before Lord Campbell, C. J., at the London sittings after last Easter term, the plaintiff had a verdict on this issue.

Knowles, in last Trinity term, obtained a rule nisi to arrest the judgment, on the ground that the bill of exchange set out in the declaration was payable on a contingency, and that the declaration was therefore bad.

Watson and M. Smith now showed cause. The meaning of the bill of exchange as described in the declaration is that it is to be paid ninety days after sight at all events, or sooner if the drawee is in funds before that period. [LORD CAMPBELL, C. J. Even on this construction it would be uncertain whether it would be payable at all within the ninety days, and, if payable within that time, on what particular day it would be so payable.] Although a bill payable on a contingency that may never happen, as out of money to arise on the sale of defendant's reversion, is bad, Carlos v. Fancourt; yet if the contingency, on which the bill is payable, must happen, as, for instance, six weeks after the death of the defendant's father, the bill is good. Cooke v. Colehan. A bill payable so many days after sight is good, though it is uncertain when sight will be had of the bill. If the language of this bill had been "ninety days after sight and when realized," the objection would be good; but the alternative "or" saves the bill, for the period of payment, viz., the end of ninety days, must arrive.

Atherton, contra. Unless the instrument declared on be a good bill, the declaration is bad, for no consideration is stated for the defendant's promise. Treating the instrument, therefore, as a bill, and giving a

1 5 T. R. 482.