qualities of

and the declaration averred the sale of the reversion, yet it was holden Sect. 4. that the note could not be declared on as a negotiable note under the Form and statute, because the money was to be paid only on a contingency. So promissory where the promise was to pay - on the sale or produce, immediately notes, &c. when sold, of the White Hart, St. Albans, Herts, and the goods therein, although it was averred in the declaration, that the house and goods were sold, yet the note was considered invalid. The same principle was recognised in the following cases, though the notes were held good.

A promissory note was given to an infant, payable when he should [ 387 ] come of age, viz. on such a day in such a year, this was holden good; for, per Denison J. here is no condition or uncertainty, but it is to be paid certainly, and at all events, only the time of payment is postponed. So where the plaintiff declared in the first count on a promissory note, dated 27th May, 1732, whereby defendant promised to pay to H. D. or order, 150 guineas, ten days after the death of his father, John Cooke, for value received; which note, after the death of the father (which was laid to be on the 2d April, 1741,) was duly indorsed by D. to plaintiff; and in the second count, on a promissory note, dated 15th July, 1732, whereby defendant promised to pay H. D. or order, six weeks after the death of his father, 50 guineas, for value received, the like indorsement laid after the death of the father as before; after a general verdict for plaintiff on both notes, it was insisted for defendant, in arrest of judgment, that these notes were not within the statute 3 & 4 Anne, c. 9. After three arguments, Willes, Chief Justice, delivered the opinion of the court in favour of the plaintiff'; on the ground that the notes did not depend on any contingency: that there was a certain promise to pay at the time of giving the notes, and the money, by virtue thereof, would become due and payable at one time or other, though it was uncertain when that time would come; that there was not any weight in the objection, that the maker might have died before his father, in which case the notes would have been of no value, because the same might be said of any notes payable at a distant time, that the maker might die worth nothing before the note became payable. He added that he thought that the averment of the death of the father before the indorsement, did not make any alteration: because they were of opinion, that if the notes were not within the statute, ab initio, they could not be made so by any subsequent contingency.

So where the note was to pay within a certain time after such a ship was paid off, it was holden good; because the ship would certainly be paid off some time or other.

It has been said, that in the application of the rule relative to these instruments being payable at all events, there is a distinction between bills of exchange and promissory notes, and that a note may in certain cases be payable on a contingency; but it will appear, that the cases' [ 338 ]

b Carlos v. Fancourt, 5 T. R. 481.Ante

Hill v. Halford, 2 Bos, & Pul. 413. Ante, 44. note.

d Goss v. Nelson, 1 Burr. 226. Ante, 48.

Colehan v. Cooke, Willes, 393, affirmed in error, Stra. 1217. Ante, 48.

f Andrews v. Franklin, Hil. 3 Geo. 1. B. R. 1 Stra. 24. Sed quære, see ante, 49, as to this point.

& Kyd, 56.

b Dawkes v. Delorain, 2 Bla. Rep. 782. Ante, 43, 44.

i Cooke v. Colehan, 2 Stra. 1217. Andrews v. Franklin, 1Stra. 24. Goss v. Nel

Sect. 4. adduced in support of this distinction, are equally applicable to bills Form and of exchange; and it is now settled, that in general, if a note be paypromissory able on a contingency, it will be as inoperative as a bill payable in the notes, &c. same manner. It has also been observed, that in the application

of the principle that these instruments must not be payable out of a particular fund, there is a material distinction between bills of exchange and promissory notes; but the case adduced in support of this opinion, only shows that the statement in a bill or note, of the consideration for which it was made, will not vitiate it." It is also settled, that it is not necessary that a note, any more than a bill of exchange, should contain any words rendering it negotiable. In short, all the rules relative to the qualities of a bill of exchange, are equally applicable to notes, and it would be an unnecessary repetition to enumerate them.

When a promissory note is made by several, and expressed "we promise to pay," it is a joint note only; but if a note be signed by seve ral persons, and begin "I promise," &c. it is several as well as joint, and the parties may be sued jointly or severally.(433) But if a promissory [339 ] note appears on the face of it to be the separate note of A. only, it cannot be declared on as the note of A. and B., though given to secure a debt for which A. and B. were jointly hable.s

In an action by A against B. upon a promissory note, it was stated in the declaration, that B. and another jointly, or severally promised to

P Clerke v. Blackstock, Holt C. N. P. 474. March v. Ward, Peake's Rep. 180. Butler v. Malissy, 1 Stra. 76. Ovington v. Neale, 2Stra. 819. Rees v. Abbott, Cowp. 832. Rice v. Shute, 5 Burr. 2611. Com. Dig. tit. Obligation, F. G. Cabell v. Vaughan, 1 Saund. 291, b. n. 4. Abbot v. Smith, 2 Bla. Rep. 947. Holmer v. Viner, 1 Esp. Rep. 134. Bayl. 24. 177, 8. Selw. 4th ed. 368.

March v. Ward, Peake's Rep. 130. As-
sumpsit on a promissory note, made by the
defendant, and one Bowling, in the follow-
ing words, viz.-"I promise to pay, three
months after date, to W. March, 37. 58. for
value received in fixtures.

"ROBERT BOWLING."
"THOMAS WARD."

It was objected, that this promissory note was joint only, and not several. Lord Kenyon. I think this note beginning in the singular number is several as well as joint. and that the present action may be maintained on it. I remember a case tried be fore Mr. Moreton at Chester, exactly similar to the present, wherein I was counsel for the defendant. I persuaded the judge that it was a joint note only, and the plaintiff was nonsuited; but on an application being afterwards made to this court, they were of a contrary opinion. and a new trial was granted; the letter "I" applies to each severally. Verdict for the plaintiff

Roberts v. Peake, 1 Burr. 323. A note signed by the defendant alone, but im porting in the body of it to have been made by the defendant and another per

son,

was declared upon as the several note of the defendant, and it was agreed that it might be declared upon according to its legal operation; but judgment was given for the defendant upon another ground. See Siff kin v. Walker, 2 Campb 308.

1 Siff kin v. Walker and others, 2 Campb. 308. Emley v. Lye, 15 East, 7. Ante, 39.

(433) The same doctrine was held in Hunt v. Adams, 5 Mass. Rep. 358. and see Hemmenway v. Stone, 7 Mass. Rep. 58. And a promissory note given by one member of a Commercial Company to another member, for the use of the Company, will maintain an law by the promisee in his own name against the maker. Van Ness v. Forrest, 8 Cranch, 30.

Form and

pay it; and it was holden, that the declaration was good, for or was Sect. 4. synonymous to and, that they both promised that they, or one of them, qualities of should pay, consequently both and each were liable in solidum. And promissory it has been held, that if an action be brought on a joint note, and some notes, &c. of the persons making the note are not made defendants, advantage can only be taken of the omission by plea in abatement. And if one of several makers of a promissory note be an infant, he should not be sued, nor should the declaration state that he was a party;t and if there be a joint and several promissory note of two persons, and one of them was a security only for the other, and the circumstance were known to the holder, and he accept a composition from the assignees of such principal, amounting to less than the dividend payable under his commission, it has been held that this conduct releases the surety from liability."

The amount of the stamp duties imposed on notes until the 10th [ 340 ] October, A. D. 1808, was regulated by the 44 Geo. 3. c. 98, schedule A. The amount of the duties from that time until the 10th October, A. D. 1808, were regulated by the statute 48 Geo. 3. c. 149. The present stamp duties on notes are regulated by the 55 Geo. 3. c. 184, and these are the same as the stamps on bills, except as to notes re-issuable after payment by the maker.

The regulations with respect to the stamps on notes in general, and in particular to re-issuable notes, and the licensing bankers to draw and re-issue the same, have already been mentioned, and the statute itself will be found in the Appendix.

Butler v. Malissy, 1 Stra. 76. In an action on a note, the declaration stated, that the defendant and another did jointly or severally promise to pay, and upon demurrer the court held it bad, and the plaintiff obtained leave to discontinue. And in Ovington v. Neale, Stra. 819.Ld. Raym. 1544, the plaintiff declared upon a note by which the defendant and another jointly or severally promised to pay, and upon error the court of King's Bench held it bad, because the plaintiff had not shown a title to bring a separate action against the defendant, for he only says he has this or some other cause of action, and judgment for the plaintiff was reversed.

However, in Rees v. Abbott, Cowp. 832, the declaration upon a note stated, that the defendant and another made their note, by which they jointly or severally promised to pay, and upon error after judgment by default, Butler v. Mallissy, and Ovington v. Neale, were cited as in point. Sed per Lord Mansfield." If · or' is to be considered in this case as a disjunctive, the plaintiff is to elect, and by the action he has made his election to consider the note as several, but in this case it is synonymous to and,' and both and each promise to pay." Judgment affirmed.

Per Buller, J. in Rees v. Abbott,

Cowp. 832. See ante, p. 338, note.

Selw. 4th ed. 369.

CHITTY ON BILLS.

Burgess & Merrill, 4 Taunt. 468.-1
Chitty on Plead. 3d ed. 35.

"Garrett v. Jull, B. R. Mich. 22 G. 3. MS. Selw. 4th ed. 369. An action was brought against defendant only, on a joint and several note, made by defendant and one Stoddart. Plea, non-assumpsit. Defendant gave in evidence an agreement in writing, entered into by plaintiff with the assignees of Stoddart, then a bankrupt, to receive from them 6007. in lieu of 8837., actually due from the bankrupt on this note (which was for 1007.) and on other transactions; and that defendant was only surety for Stoddart. Defendant obtained a verdict. On motion to set it aside, it was insisted, on the part of the defendant, on the ground that the agreement put an end to the plaintiff's recovery on the note, that the principal could not be discharged without discharging the surety also. On the part of the plaintiff it was urged, that it was not the meaning of the agreement that the defendant should be discharged. But per Lord Mansfield, C. J. the plaintiff was party to the agreement, and we cannot receive parol evidence to explain it. Whatever might be the intention of the parties, the principal cannot be released without its operating for the benefit of the surety. Rule discharged. As to this point, see ante, 301.

* Ante, 53.
Rr

Sect. 4. Bank notes are exempted from the stamp duty by the 23 Geo. 3. c. Form and 49. s. 9, and other subsequent statutes, in consideration of the payqualities of promissory ment of the annual sum of £12,000 into the receipt of his majesty's notes, &c. exchequer. The decisions on the former and present stamp acts already stated, are here applicable.

In all points in which a distinction between bills of exchange and promissory notes, has not been pointed out, the rules relative to the one, equally apply to the other, and therefore it will not be necessary to make any further observations in the present chapter.

Ante, 54 to 58.

PART SECOND.

The REMEDIES on a Bill, Check, or Note.

IN the preceding part of this work, I have endeavoured to point out the nature of the RIGHT which may be acquired by the instruments which are the subject of this Treatise. The REMEDY which the law affords the parties to enforce payment, forms the remaining head of inquiry. In this part of the work no distinct observations on bills and notes will be necessary, as the same remedies are given by law on both species of instrument except that in some cases debt is not sustainable on a promissory note, which distinction will be pointed out. The means of enforcing payment, are either by action of assumpsit, or debt, or, where the party is a bankrupt, by proof under the commission. In the consideration of the above-mentioned actions, the pleas and defences, and the evidence to be adduced by each party, will also be considered.