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II.

sum of money is certain though payable with interest, or CHAPTER by stated instalments, with or without a proviso making the whole due on default of any instalment, or according to an indicated rate of exchange, or one to be ascertained as directed by the note itself (c).

At common law no note of hand was transferable; and Formerly not before the stat. 3 & 4 Anne, c. 9 (now repealed (d)), it was negotiable. the opinion of Lord Holt and nearly all the judges, that no action could be maintained, even by the payee, on a promissory note, as an instrument, but that it was only evidence of a debt. (e). That statute first made promissory notes assignable and indorsable like bills of exchange, and enabled the holder to bring his action on the note itself. Foreign notes were held to be within this statute. "They are," observes the Court of King's Bench," within the words and spirit of the Act; the words are all notes.' The Act was made for the advancement of trade, and ought therefore to receive a liberal construction. It is for the advantage of commerce that foreign, as well as inland bills, should be negotiable" (ƒ). It was once doubtful whether this Act made English notes assignable abroad, but it is now decided that it did so (g).

A note cannot be made by a man to himself, but if such Note by a man an instrument be made to his order, and indorsed, it then to himself. becomes a note, and is payable to bearer, or indorsee or

order, according as the indorsement is blank or special (h).

(c) Code, ss. 9 and 89. (d) Code, Sched. II.

(e) Buller v. Cripps, 6 Mod. 29; Clerke v. Martin, 2 Ld. Raymond, 757; Story v. Atkins, ib. 1427; 2 Stra. 719; Brown v. Harraden, 4 T. R. 148; Frier v. Bridgman, 2 East, 359.

(f) Milne v. Graham, 1 B. & C. 192; 2 D. & R. 294; Houriet v. Morris, 3 Camp. 303; Bentley v. Northouse, 1 M. & M. 66. At one time it was thought that the Act did not extend to notes made abroad. Carr v. Shaw, Bayley, 23. (g) De la Chaumette v. Bank of England, 9 B. & C. 208; 32 R. R. 643.

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(h) Code, s. 83 (2). Browne v. De Winton, 17 L. J., C. P. 281 ; 6 C. B. 336; Hooper v. Williams, 2 Ex. 13; Gay v. Lander, 17 L. J., C. P. 286; 6 C. B. 336;

Wood v. Mytton, 10 Q. B. 805;
Flight v. McLean, 16 M. & W. 51.
So, in America, it has been held
that an instrument payable to the
maker and indorsed by him, is a
promissory note. Maldow v. Cald-
well. 7 Miss. 563. And see 55
Geo. 3, c. 184, Sched. Pt. 1.
In Absolon v. Marks, 11 Q. B.
19, the defendant was held liable
on a note made by himself and
others, promising to pay "to
our and each of our order," but
indorsed by him alone. So a bill
to drawer's order is not a nego-
tiable instrument till he indorse.
Singer v. Elliot, 4 T. L. R. 594;
Jenkins v. Comber, 1898, 2 Q. B.
168 67 L. J. 780.

A note by a man to himself
seems not to be within the defi-
nition in Code, s. 83 (1), unless
s. 8 (4) removes the difficulty.

CHAPTER
II.

Joint and several.

Nor can there be a note by the maker to himself and another man (i). Nor a joint note by the maker and others to himself; but such a note, if joint and several, may be valid at the suit of the payee, as to the several contracts of his co-makers (k).

A note may be made by two or more makers, and they may be liable thereon jointly, or jointly and severally, according to its tenour (). A note signed by more than one person and beginning "we promise, &c.," is a joint note only. Joint and several notes usually express that the makers jointly and severally promise; but a note signed by more than one person, and running, "I promise to pay," is several as well as joint (m). So a note beginning in the singular, "I promise," and signed by one partner for himself and his co-partners, is the joint note of all, and has been held to be also the several note of the signing party (n).

A joint and several note, though on one piece of paper, comprises, in reality and in legal effect, several notes (0). Thus, if A., B., and C. join in making a joint and several promissory note, there are, in effect, four notes. There is the joint note, of the three makers, and there are also the several notes of each of the three (p). The joint note may

(i) Moffat v. Van Millingen, 2 B. & P. 124, n.; 5 R. R. 557; Mainwaring v. Newman, ibid. 120; 5 R. R. 554; Teague v. Hubbard, 8 B. & C. 345; but indorsement apparently will remove the difficulty. Quære, as to the effect of survivorship.

(k) Beecham v. Smith, 27 L. J., Q. B. 257; E. B. & E. 442.

(1) Sect. 85 (1).

(m) Code, s. 85 (2). March v. Ward, Peake, 130; 3 R. R. 667; Clerk v. Blackstock, Holt, N. P. C. 474; 17 R. R. 667. So held, too, in America. Hemmenway v. Stone, 7 Mass. 58; Barnett v. Skinner, 2 Bay. 88; Monson v. Drakley, 16 Amer. R. 74. So a bond in the singular number, executed by several, is several as well as joint. Sayer v. Chaytor, 1 Lutw. 695; Galway v. Matthew, 1 Camp. 403 ; 10 East, 264; 10 R. R. 289. As to a joint, or joint and several, warrant of attorney, see Dalrymple v. Fraser, 15 L. J., C. P. 193; 2 C. B. 698.

(n) Doty v. Smith, 11 Johns.

Amer. Rep. 543; Hall v. Smith, 1 B. & C. 407; 2 D. & R. 584; Galway v. Matthew, 1 Camp. 403; 10 R. R. 289. But Hall v. Smith seems to be overruled in Er parte Buckley, 14 M. & W. 475; 15 L. J., Bkcy. 3. See also Maclae v. Sutherland, 3 E. & B. 1.

(0) Fletcher v. Dyche, 2 T. R. 36; 1 R. R. 414, Ashurst, J.; Owen v. Wilkinson, 28 L. J., C. P. 3; 5 C. B., N. S. 526.

(p) See the observations of Parke, B., in King v. Hoare, 13 M. & W. 505, followed in Brinsmead v. Harrison, L. R., 6 C. P. 584; Bulbeck v. Jones, 5 Jur., N. S. 1317; Beecham v. Smith, E. B. & E. 442. In such a case the payee might sue the three, or each singly; he could not do both. Streatfield v. Halliday, 2 T. R. 782. But see now Ord. XVI. r. 6, enabling the plaintiff to join any or all persons severally, or jointly and severally, liable on any one contract including parties to bills and notes; and Davies v. Jenkins, L. R., 1 Chan. D. 696.

be valid although the several notes are void (q). Yet, for some purposes, it is still one contract. Thus, an alteration which affects the liability of one maker vitiates the entire instrument (r).

In case of a note on its face joint, or joint and several, it is conceived that evidence to show that one maker is surety for the other (s) was inadmissible at law, if the question arose between the creditor and the surety; but evidence to that effect has been received (t). Where, however, the question arises between the principal debtor and the sureties in an action for indemnity or contribution, such evidence is admissible.

CHAPTER

II.

Where there is principal and surety.

between joint

makers.

Joint debtors equally liable, as between themselves (not Contribution being general partners (u)), are severally entitled at law to contribution (x), even against the executor of a contributory (y). Therefore, one of several joint, or joint and several makers of a note, who pays more than his share, may maintain an action against another for contribution; and he may also on giving a proper indemnity, sue his companion on the instrument in the creditor's name, and

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(r) Gardner v. Walsh, 5 E. & B. 91.

(8) Price v. Edmunds, 10 B. & C. 578; Strong v. Foster, 17 C. B. 201; but see Manley v. Boycott, 2 E. & B. 46.

(t) Garrett v. Jull, S. N. P. 377; and see the observations of Williams, J., in Reynolds v. Wheeler, 30 L. J., C. P. 351; 10 C. B., N. S. 561; Hall v. Wilcox, 1 M. & Rob. 58. The admission of such evidence seems to contravene the general rule of law, that parol evidence is inadmissible to vary or explain a written contract. Where the indorsee sues, another objection interposes, that the indorsee would be affected by a contract of which he had no notice. Besides, from the case of Fentum v. Pococke, 5 Taunt. 192; 1 Marsh. 14,

which has been recognized as law
ever since it was decided, this
general principle seems to result,
that parties to a negotiable secu-
rity shall be held to the conse-
quences of the characters which
they severally assume on the face
of the instrument. Indeed, in
Strong v. Foster, 17 C. B. 201,
the Court of C. P., relying on
some expressions of Lord Cotten-
ham in Holtier v. Eyre, 9 Cl. &
F. 45, seemed to think the rule
the same in equity as at law. But
the case of Strong v. Foster may
be considered as overruled; see
post, Chapter on PRINCIPAL AND
SURETY, and Perfect v. Musgrave,
6 Price, 111.

(u) Sudler v. Nixon, 5 B. & Ad.
936.

(x) Burnell v. Minot, 4 Moore, 340; Hutton v. Eyre, 6 Taunt. 289; 16 R. R. 619; Holmes v. Williamson, 6 M. & S. 158; Edgar v. Knapp, 6 Scott's N. R. 707; 5 M. & G. 753.

(y) Prior v. Henbrow, 8 M. & W. 882.

CHAPTER
II.

Bank notes.

Bank of
England

notes.

When a legal tender.

his own payment shall not be pleadable in bar (z). He may now cause him to be introduced as a co-defendant into the action (a).

A bank note is a promissory note, made by a banker, payable to bearer on demand, and intended to circulate as money (b).

The term bank note is sometimes used indiscriminately for the note of a country bank, or the note of the Governor and Company of the Bank of England; but, in law books, a bank note is commonly taken to mean a Bank of England note. "Bank notes," says Lord Mansfield," are not goods, not securities nor documents for debts, nor are they so esteemed; but are treated as money, as cash, in the ordinary course and transactions of business, by the general consent of mankind, which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. They pass by a will which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So, on bankruptcies they cannot be followed as identical, and distinguishable from money, but are always considered as money or cash" (c). Like money, they could not, at common law, be taken in execution (d), but may be taken by virtue of the stat. 1 & 2 Vict. c. 110, s. 12.

Gold coin was formerly the only legal tender above a certain amount (e); bank notes were, nevertheless, a good tender, unless objected to on that account (f); but it is enacted, by 3 & 4 Will. 4, c. 98, s. 6, that Bank of England

() 19 & 20 Vict. c. 97, s. 5; Batchelor v. Lawrence, 30 L. J., C. P. 39; 9 C. B., N. S. 543.

(a) Order XVI. rr. 48 et seq. See, too, Chapter XX. as to CONTRIBUTION.

(b) As to the power of the Bank of England and other banks to issue promissory notes, see the Chapter on the CAPACITY OF PARTIES TO A BILL OR NOTE.

(c) Miller v. Race, 1 Burr. 452; Fleming v. Brooke, 1 Sch. & Lefr.

318; 11 Ves. 662; 9 R. R. 35;
Drury v. Smith, 1 P. Wms. 404;
Miller v. Miller, 3 P. Wms. 356;
Ambler, 68.

(d) Francis v. Nash, Rep. temp. Hardwicke, 53; Knight v.Criddle, 9 East, 48; Armistead v. Philpot, 1 Dougl. 219; Fieldhouse v. Croft, 4 East, 510.

(e) 56 Geo. 3, c. 68, s. 11.

(f) Wright v. Reed, 3 T. R. 554; Grigby v. Oakes, 2 B. & P. 526; Brown v. Saul, 4 Esp. 267.

notes shall be a legal tender for all sums above 57., except CHAPTER at the Bank of England or its branches.

The Act regulating legal tenders is the 33 & 34 Vict. c. 10; there is no limit as to gold, but silver must not exceed 40s., nor bronze coins 1s., to constitute a valid tender.

II.

Formerly, money was kept with goldsmiths, who, about Country bank the year 1670, introduced, as receipts for deposits, promis- notes. sory notes payable to bearer, called Goldsmiths' Notes ; the assignable quality of these notes was strenuously denied by Lord Chief Justice Holt, in the reign of Queen Anne. At length, the stat. 3 & 4 Anne, c. 9, made them assignable, like bills. Cheques on bankers have now superseded goldsmiths' notes, in London; but bankers' cash notes, or, as they were formerly called, shop notes, and country bank notes, are now what goldsmiths' notes were formerly.

Country bank notes are also a legal tender, unless When a legal objected to, and are considered as cash (g).

tender.

had and received would lie for them.

Assumpsit for money had and received would lie for When money country bank notes and cheques which had been treated as money (h), but not otherwise (i); for it has been held, that an action for money had and received would not lie against the finder of lost notes unless they have been turned into money, or treated by the defendant as money.

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No precise words of contract are essential in a promissory note, provided they amount in legal effect to an unconditional promise to pay. Thus, "I promise to account with A. B. or order for 507., value received by me," has been held a good note within the statute (k). So, I do acknowledge myself to be indebted to A. in 1007., to be paid on demand for value received," was, after solemn argument, held to be a good note within the statute, the words "to be paid" amounting to a promise to pay; the Court observing, that the same words in a lease would

(g) Chitty, 521; Owenson v. Morse, 7 T. R. 64; Ward v. Erans, 2 Ld. Raym. 928; Tiley v. Coursier, K. B. 1817; overruling Mills v. Stafford, Peake, N. P. 240, n.; Lockyer v. Jones, Peake, N. P. 240, n.; 3 R. R. 682, n.; Polglass v. Olirer, 2 C. & J. 15; 2 Tyr. 89; 37 R R. 623.

(h) Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse, 4 Bing. 173; 12 Moo. 395.

(i) Noyes v. Price, Chitty, 354. (k) Morris v. Lee, 2 Ld. Raym. 1396; 1 Stra. 629; 8 Mod. 362 ; Chadwick v. Allen, 2 Stra. 706; Peto v. Reynolds, 11 Ex. 418.

Of the contracting words in a

promissory note.

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