Their general requisites. I. S. shall not pay the money by a particular day', or provided I. S. shall leave me sufficient, or I shall otherwise be able to pay it, or when I. S. shall marry, or if the maker should be married within two months. or to pay a sailor wages if he do his duty as an able seaman, is no bill or note on account of the contingency upon which the payment depends. So if the payment depend upon the sufficiency of a particular fund, the bill or note will be invalid; thus an order to pay money out of the drawer's growing subsistence, or out of the fifth payment when it should become due, and it should be allowed by the drawer, or out of money when received", or an order to pay Appleby v. Biddulph, cited 8 Mod. 363.-4 Vin. Ab. 240. pl. 16. An action was brought on this note, I promise to pay T. M. £50, if my brother doth not pay it within six weeks," and after verdict for the plaintiff the court arrested judgment, because the maker was only to pay it upon a contingency. ་。 Roberts v. Peake, Burr. 323. The plaintiff, as indorsee of a note, sued one of the makers; the instrument was in these words, promise to pay A. B. £116. 11s. value received, on the death of George Henshaw, provided he leaves either of us sufficient to pay that said sum, or if we otherwise shall be able to pay it ;" and upon a case reserved, the court held it was not a negotiable note, because it was payable eventually and conditionally only, and not absolutely and at all events, and a nonsuit was entered; and see Ex parte Tootell, 4 Ves. 372. 3 Beardsley v. Baldwin, Stra. 1151. A note to pay money within so many days after the defendant should marry, was held not to be a negotiable note; and in Pearson v. Garrett, Comb. 277, and 4 Mod. 242. an action having been brought upon a note, by which the defendant promised to pay the plaintiff sixty guineas, if he (the plaintiff) should be married within two months, the court inclined against the note, because it was to pay money on a mere contingency. 4 * Alves v. Hodgson, 7 T. R. 242. 3 Jocelyn c. Laserre, Fort. 281.-10 Mod. 294. 316. Evans drew upon Jocelyn, and required him to pay Laserre £7 per month out of Evans's growing subsistence. Laserre sued Jocelyn and had judgment, but upon a writ of error, that judgment was reversed, because this draft was not a good bill of exchange, inasmuch as it would not have been payable had Evans died, or had his subsistence been taken away. Haydock v. Linch, Lord Raym. 1563. Rogers drew upon Linch and requested him to pay Haydock £14 3s. out of the fifth payment when it should become due, and it should be allowed by Rogers. Linch accepted the draft, and Haydock sued him, but the court, upon demurrer to the declaration, held this was no bill of exchange, and gave judgment for the defendant. 7 Dawkes v. Lord de Loraine, 2 Bla. Rep. 782.-3 Wils. 207. A draft was in these words, "8 Jan. 1768. Seven weeks after date, pay to Mrs. Dawkes £32 17s. out of W. Steward's money, as soon as you shall have received it, for your humble servant, De Loraine. To Timothy requisites. the amount of a note and interest out of the purchase- Their general money of the drawer's house', or an order or promise to pay out of the drawer's money that should arise from his reversion, when sold, is no bill or note". So an order to pay a sum of money out of the rents or other money in the hands of the person to whom it is addressed, is no bill, because he may not have rent or other money in his hands sufficient to discharge it3. So a promise to pay on the sale or produce, immediately when sold, of the White Hart Inn, St. Alban's, and the goods, &c. is no note, although it be averred in the declaration upon such promise, that the White Hart Inn, goods, &c. were sold before the action was com Brecknock, Esq." Brecknock accepted the bill, but it not being paid, Carlos v. Fancourt, in error from the C. P. 5 T. R. 482. Assumpsit upon a promissory note, whereby Carlos, in the life-time of defendant's wife, promised to pay Fancourt's wife the sum of £10, “out of his money that should arise from his reversion of £43 when sold." The defendant suffered judgment by default, and brought a writ of error, and the court held that this note could not be declared upon as a negotiabic security under the stat. 3 & 4 Ann. c. 9. the object of which stat. was to put promissory notes on the same footing with bills of exchange in every respect, and they must stand or fall by the same rules by which bills of exchange were governed; and unless they carried their own validity on the face of them, they were not negotiable, and on that ground, bills of exchange which were only payable on a contingency, were not negotiable, because it did not appear on the face of them whether or not they would ever be paid. The same rule that governed bills of exchange in this respect must also govern promissory notes, and therefore reversed the judg ment.-Hill v. Halford, post, 58. & 59. n. l. Jenney v. Herle, Lord Raym. 1361.-8 Mod. 265 -Stra. 591.Herle sued Jenney upon a bill drawn by him upon Pratt, and payable to Herle as follows, "Sir, you are to pay Mr. Herle £1945 out of the money in your hands, belonging to the proprietors of the Devonshire Mines, being part of the consideration money for the purchase of the manor of West Buckland. Herle had judgment in the Common Pleas; but upon a writ of error, the Court of King's Bench held, that this was no bill of exchange, because it was only payable out of a particular fund, supposed to be in Pratt's hands, and the judgment was accordingly reversed. Their general requisites. menced'. So an order from the owner of a ship to the freighter, to pay money on account of freight, is no bill, because the quantum due on the freight may be open to litigation, but such an order from the freighter is, because it is an admission that so much at least is due'. Secondly, the bill or note must be for the payment of money only, and not for the payment of money and performance of some other act, or in the alternative. Thus, if an instrument be to deliver up horses and a wharf, and pay money on a particular day, or to pay a sum of money, or surrender to I. S. to prisons, or to pay money in good East India Bonds', is not a bill or note. 'Hill v. Halford and another, in error, 2 Bos. & Pul. 413. The defendants in error sued Hill, as maker of a note, thereby promising to pay them £190 on the sale or produce, immediately when sold, of the White Hart Inn, St. Alban's, Herts, and the goods, &c. value received. The declaration averred a sale of the Inn and goods before the commencement of the action. After judgment in K. B. by default, writ of inquiry executed, and general damage recovered. Hill brought a writ of error in the Exchequer Chamber, and the court held that this promise could not be declared on as a note, and therefore reversed the judgment. Banbury v. Lissett, Stra. 1211. Gibson drew on the defendant in favour of the plaintiff, "on account of the freight of the Galley Veale, Edward Champion, and this order shall be your sufficient discharge for the same." This action was brought against the defendants as acceptors, and they contended that it was not a bill of exchange, because it was only payable out of a particular fund; and Lee, C. J. was of that opinion. 3 Pierson. Dunlop, Cowp. 571. M'Lintot freighted a ship, of which Nicholl was captain, and Pierson owner, and being unable to pay the freight, drew upon Dunlop and Co. in favour of Nicholl, on account of freight. Pierson afterwards sued Dunlop and Co. as acceptors, and though other objections were taken, yet it was never insisted that this was payable out of a particular fund. Martin v. Chauntry, Stra. 1271. On error from the Court of Common Pleas, the Court of King's Bench held, that a note to deliver up horses and a wharf, and pay money at a particular day, was not a note within the statute, and reversed the judgment in favour of the original plaintiff. Smith v. Boheme, Gilb. Cases L. & E. 93. cited also in Lord Raym. 1362. 1396, and see 3 Lord Raym. 67. Error on judgment in C. P. 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. The court held such note to be contingent and invalid. Anon. Bull. Ni. Pri. 272. a written promise to pay £300. to B. or order, in three good East India bonds, was held not to be a note within the statute. If the bill, note, &c. be insufficient in its formation Their general requisites. in either of these respects, it will not become valid by any subsequent occurrence rendering the payment no longer contingent'; and the instrument will not be negotiable, nor can it be declared upon as a bill, even between the original parties; and though it may in some cases be declared upon as an agreement, yet it cannot be produced in evidence, unless stamped as such3; and even if it be stamped, the consideration on which it was founded must be proved. So, though the instrument may, on the face of it, be absolute, yet, if by a memorandum on the back of it, the payment is rendered conditional, it cannot be declared upon as a bill or note between the same parties. And therefore, where upon an instrument in the common form of a joint and several promissory note, signed by three persons, there was an indorsement written at the time of signing it, stating that the note was taken as a security for all balances to the amount of the sum within specified, which one of the three might happen to owe to the payee, and that the note should be in force for six months, and that no money should be liable to be called for sooner in any case; it was decided, in an action against one of the sureties, that the payee could not declare upon this instrument as a promissory note, payable either on demand, or at six months after date*. 'Hill v. Halford, 2 Bos. & Pul.413.-Ante, p. 58.-Colehan v. Cooke, Willes, 399, post.-Kingston v. Long, ante, 55.-Selw. N. P. 367, n. 71. acc.-Lewis v. Orde, 1 Gilb. Ev. by Loft, 179. semb. contra. Carlos v. Fancourt, 5 T. R. 485. Mainwaring v. Newman, 2 Bos. & Pul. 123.-Alves v. Hodgson, 7 T. R. 243.-Bayley on Bills, 8. Mainwaring v. Newman, 2 Bos. & Pul. 125.-Kyd on Bills, 58.Leeds v. Lancashire, 2 Campb. 207. * Leeds v. Lancashire, 2 Campb. 205. The defendant Marriott and Ball gave a joint and several promissory note to the plaintiffs for £200. No time for payment was mentioned in the note. On the back was written "The within note is taken for security of all such balances as James Marriott may happen to owe to Thomas Leeds and Co. not extending farther than the within sum of £200, but this note to be in force for six months, and no money liable to be called for sooner in any case." This memorandum was written before the note Their general requisites. And when it appears by any part of the instrument, that the money was not payable immediately, and that the payment was to depend on an uncertain event, it will not operate as a bill of exchange, or a promissory note, but as a special agreement, and must be stamped as such; and therefore it was recently decided, that an instrument acknowledging the receipt of a bill of exchange which had two months to run, and promising to pay the amount with interest, is a special agreement, and not a promissory note, being in effect a special undertaking to repay the amount of the bills if honoured at maturity". So where an instrument, purporting on the face of it to be a promissory note for the payment of money absolutely before it was signed, was indorsed with a memorandum, that if any dispute should arise between Lady W. and the plaintiff, respecting the sale of the timber, for which the note was given, it should be was signed by the defendant or Ball. It appeared in an action upon this note, that, in the course of mercantile dealings, Marriott had become indebted to the plaintiffs, and that on their refusing to deal with him any longer without some guarantee, the above instrument, which the makers represented to be a note, was given. It was impressed with a promissory note stamp. Lord Ellenborough. As between the original parties this instrument is only an agreement, and not a note; in the hands of a bonâ fide holder, who received it as a promissory note, it might possibly be considered as such. The plaintiffs were nonsuited. 'Williamson v. Bennett, 2 Campb. 417. The defendants were sued on the following instrument which was stamped as and declared upon as a promissory note, " Borrowed and received of J. and J. Williamson, (the plaintiffs,) the sum of £200, in three drafts, by W. and B. Williamson, dated as under, payable to us, W. Bennett and S. M. (the defendants) on J. and J. Williamson, which we promise to pay unto the said J. and J. Williamson, with interest. As witness this 26th day of August, 1802." August 21st. 1 draft at 2 months £120 Lord Ellenborough held, that this was not a promissory note; and said there can be no doubt that the money was not payable immediately, and that it was not to be paid at all unless the drafts were honoured. The plaintiffs were nonsuited. |