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2. What was provided by the statute of Ann.

The statute of 3 & 4 Ann, c. 9, was passed "for giving like remedy upon promissory notes as is now used upon bills of exchange." 4 T. R. 152. This statute is regarded as a legislative declaration that no action could be maintained on a promissory note-not even by the payee-without stating the original consideration. Holroyd, J. 2 Barn. & Ald. 420.

The preamble after stating the decisions that notes were not valid by the custom of merchants, recites the expediency of giving to such notes the validity of inland bills of exchange. Then the first of the four clauses enacts that all notes in writing, signed by the maker or by certain agents of the maker, therein described, whereby the maker promised to pay to any other person or his order, or to bearer, money, should be taken and construed to be due and payable to the persons to whom they were made payable; the third clause provides that they may maintain an action on the same in like manner as upon an inland bill of exchange. The effect is not only that the payee may sue on the note but that it is sufficient evidence to support the action without proving the consideration. Chase, J., in Nolan v. Ringgold, 3 Har. & Johns. 217. The other clauses relate to the endorsements.

3. What is not a good promissory note within the statute of Ann.

A note to be a good negotiable note within the statute of Ann, must be payable absolutely and at all events. Where it is uncertain whether the money shall ever become payable or not, such a contingent note is not within the statute. Ld. Mansfield, 1 Burr. 227; Worden v. Dodge &c. 4 Denio 159; as if the promise be to pay within so many days after the defendant should marry. Beardsley v. Baldwin, 2 Str. 1151; or to pay on the death of G. H. provided he leaves either of us sufficient to pay the said sum, or if he shall be otherwise able to pay it. Roberts v. Peake, 1 Burr. 323.

There is no distinction in this respect between the endorser of a promissory note and the drawer of bills of exchange. An instrument for the payment of a sum out of the drawer's money "that should arise from his reversion of £ 43 when sold," would not be good in either case. Carlos v. Fiancourt, 5 T. R. 482. Even as between the payee and the maker, the plaintiff failed to maintain an action on a note payable on the sale or produce immediately, when sold, of the White Hart, St. Albans, Harts, and the goods" &c. Hill v. Hal

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fourd &c. 2 Bos. & Pul. 413. And the decisions sustaining the actions in Andrews v. Franklin, 1 Str. 24, and Evans v. Underwood, 1 Wils. 262, are very questionable.

When instead of the note being payable at all events there is on it an endorsement-which must be incorporated with the body of the note-shewing that the instrument is only a guaranty for what a third person may owe the payees not exceeding a certain sum, it must be treated not as a promissory note but as a mere agreement. Leeds &c. v. Lancashire, 2 Camp. 205. So the instrument is to be treated only as an agreement when it appears on its face that the money is to be paid only in the event of certain drafts being honoured. Williamson &c. v. Bennett &c. 2 Camp. 417; or on some other contingency.

A defendant promised to pay a certain sum to J. P. D. or to the plaintiffs for value received; the instrument was sued on as a promissory note, one count treating it as within, another not as within the statute of Ann. It was held that neither count could be supported; not the first, for a promise to pay to A if the maker does not pay to B or C, is a conditional promise, and consequently not within the statute; and not the second, for according to the common law it was necessary to state the consideration in the declaration. Blanckenhagen &c. v. Blundell, 2 Barn. & Ald. 417.

So a writing is not a promissory note within the statute, when the undertaking on the part of one person is absolute to pay, and on the part of the defendant is conditional onlyin the event of the first not paying. Ferris v. Bond, 4 Barn. & Ald. 679, 6 Eng. Com. Law Rep. 563.

The supreme court of Massachusetts held that an action could not be maintained under the statute of Ann by the assignee of a writing promising to pay the bearer, 6 months after date, $980, "provided the ship Mary arrives at an European port of discharge free from capture and condemnation by the British;" it considered the writing not negotiable, on account of the contingency. Coolidge v. Ruggles, 15 Mass. 387.

4. What within the statute of Ann is a good promissory note. It must be for a certain sum, payable absolutely at

a certain time.

A note is a good negotiable note within the statute of Ann, though it be payable six weeks after the death of the maker's father; for there is no contingency whereby it may never become payable, but it is only uncertain as to time, which is the

case of all bills payable so many days after sight. Cooke v. Colehan, 2 Str. 1217.

Though a note given an infant be payable when he shall come of age, yet it specifying the time when that would be, viz: 12th June 1750, it was considered that it was to be paid on the 12th June 1750, although he should die before that time; and the note was therefore held a good note within the statute. Goss v. Nelson, 1 Burr. 226.

The supreme court of Massachusetts maintained an action brought by the endorsee of a note payable "by the 20th of May, or when he" (the payee) "completes the building according to contract;" it considered this note to be payable absolutely at a day certain. Stevens v. Blunt, 7 Mass. 240.

A promissory note need not be in any particular words. A writing of a man shewing an absolute undertaking by him to pay to another or order a certain sum is a promissory note; if the promise be to be accountable to the payee or order for that sum, the words, accountable for, will be construed to mean pay. Morris v. Lee, 1 Str. 629, 2 Ld. Raym. 1396. Where an instrument intended to be a bill of exchange had no drawee, an acceptance written upon the face of it was treated as a promissory note of the acceptor; there being a promise by him to pay the amount. Shuttleworth v. Stephens, 1 Camp. 407, 9 W. H. & G. 410, 25 Eng. Law & Eq. 438. It was so treated, though the acceptance in the name of one was written and signed for him by another; the authority to sign having been subsequently ratified. S. C.

A certificate of a cashier of a bank, that there had been deposited in the bank a sum of money, for the use of a certain person, and payable to his order on the return of the certificate, has been treated as a promissory note payable to that person or his order; and on it an action has been maintained against him by an endorsee. Miller v. Austen &c. 13 How. 228. Such action has failed where the certificate was not of a bank, but of a different company, and in substance and effect a promissory note such as the company was forbidden by its charter to issue. Southern Loan Co. v. Morris, 2 Barr 176.

A writing may be for the payment of money; it may be payable to bearer and payable absolutely; it may have all the parts of a promissory note-and have more. The supreme

court of Pennsylvania held such a writing not a promissory note when it contained a warrant to confess judgment with a release of errors, and an agreement to waive appraisement and stay of execution; Gibson, C. J. saying, "a negotiable bill or note is a courier without luggage." Overton v. Tyler &c. 3

Barr 346. The English judges do not object so much to the luggage. They consider that an instrument is not the less a promissory note because there is an agreement on the same paper; nor does such agreement prevent it from being assignable under the statute of Ann. Thus where the instrument, besides containing a promise to pay the payee or order a certain sum for value received, had these additional words, "and I have deposited in his hands title deeds to lands purchased from the devisees of W T as a collateral security for the same"-the endorsee, nevertheless, maintained his action on the note. Wise v. Charlton, 6 Nev. & Man. 364, 3 El. & Black. 841, 77 Eng. Com. Law Rep. 841.

5. Promise must be to pay a certain person or his order or bearer.

A promissory note must contain an express promise to pay to a person therein named or designated, or to his order, or to bearer. Colehan v. Cooke, Willes 396; 2 Bl. Com. 467; Byles on Bills, 6 edi. p. 4. If the person to whom or to whose order it is to be paid is uncertain, and it depends on a contingency to whom or to whose order payment is to be made, it is not a promissory note, unless it can be treated as payable to bearer. Storm v. Sterling, 3 El. & Black. 842, 77 Eng. Com. Law Rep. 842. It is quite sufficient to make such a note by a description or designatio persona, as if it be made to the secretary of a particular society, in such a way as to shew that the person who is secretary at the time of making the note is meant; but it must not be a floating, contingent, promise to the individual who at the time of the instrument falling due should fill the situation of secretary. No action upon it as a promissory note can be maintained by such individual as payee; nor can it be treated as a note payable to bearer. S. C. But if founded on good consideration it might be valid as an agreement, and give rights, legal or equitable, to the society.

The opinion of the court of exchequer and that of the queen's bench are at variance on one point. The court of exchequer thinks the statute of Ann never contemplated the case of notes payable to the maker's order, which are incomplete instruments, and have no binding effect on any one till endorsed. Flight v. Maclean, 16 M. & W. 51, 2 W. H. & G. 19. The court of queen's bench thought that though the first part of the first section of the statute applied only to notes payable to another person or his order, or to bearer, which notes it makes obligatory between the parties, yet that

the second part applies to every note payable to any person, and therefore includes a note payable to the maker or his order. Wood v. Mytton, 10 Adol. & El., N. S. 805, 59 Eng. Com. Law Rep. 805. Such does not appear to the court of exchequer to be the meaning of this part of the section; but the difference is of no practical consequence, as in its view the effect of the endorsement is to perfect that which before was an incomplete instrument, so that the original writing and endorsement taken together become a binding contract between the maker and the endorsee, and then it becomes an assignable note. Hooper v. Williams, 2 W. H. & G. 20.

The statute making a promissory note negotiable like an inland bill, a note made in England payable to bearer, is considered in England to be transferrable abroad, just as a bill of exchange drawn in England and remitted to a foreign country would be. De La Chaumette v. Bank of England, 2 Barn. & Adol. 385, 22 Eng. Com. Law Rep. 106.

6. The words "value received" are unnecessary.

Against the maker of a note which is payable at all events, an action can be maintained by the payee though the sum be expressed to be for value received from particular premises, Burchett v. Slocock, 2 Ld. Raym. 1545; or though as between the parties the payment is to be carried to a particular account. Hanssoullier v. Hartsinck &c. 7 T. R. 729.

The words "value received" are unnecessary; they express only what the law implies from the nature of the instrument and the relation of the parties apparent upon it. Hatch v. Trayes, 11 Adol. & El. 702, 39 Eng. Com. Law Rep. 207.

7. Assent of both parties necessary.

Merely writing and signing a note and retaining it in the hands of the drawer forms no contract. 20 Johns. 288. If principal and surety make a promissory note payable to a bank, that it may be discounted by the bank, no valid contract is thereby created, without the consent of both parties. If the bank, so far from assenting to the contract, refuse to discount. the note, no action can be maintained on the note in the name of parties who do not derive title from the bank. Allen &c. v. Ayres &c. 3 Pick. 298. Nor can an action be maintained on it in the name of the bank for the benefit of such parties, where there has been no valid contract between the bank and the makers of the note. Adams Bank v. Jones, 16 Pick. 578.

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