The annotator has much satisfaction in referring to the able opinion of Ruffin, C. J., in Moss v. Adams, 4 Iredell's Equity, 42, which, though pronounced before the publication of the first edition of the present work, was not published until after it, and was overlooked when the second edition was prepared. The views expressed in that opinion will be found to agree in their general character with those upon which the preceding note is founded. The chief justice, in that case, distinctly recognizes, that, in some important particulars on this subject, the rules of the common law are directly opposite to those of the civil law. "Although the common law," he remarks, " may be indebted to the civil law for the leading rule, which gives the option first to the debtor, and then, in succession, to the creditor, and to the law; yet it is certain, that the Roman law has not been followed throughout, but the English and American courts have departed from it in several instances, and, indeed, reversed it, and allowed the creditor to make his election long posterior to the payment, and after material changes of the circumstances of the parties; and, in other instances, the law has applied the payments according to the interest and presumed intention of the creditor, as, for example, to the debt not bearing interest, or to the one more precariously secured, or one barred by the statute of limitations, or the like."

NEGOTIABILITY OF INSTRUMENTS. [*296

OVERTON v. TYLER ET AL.

In the Supreme Court of Pennsylvania.

SUNBURY, JULY TERM, 1846.

[REPORTED FROM 3 PENNSYLVANIA STATE, 346-348.]

An instrument having the usual words of a note payable to bearer, and in addition an authority to any attorney to enter a judgment in favor of the holder for the amount of the note with costs, coupled with a release of errors and a waiver of stay of execution, and of the right to an inquisition and appraisement, is not a negotiable note, and consequently an execution may issue on a judgment (previously confessed) on the day after the day fixed for payment-the drawer not being entitled to the days of grace.

ONE Smith gave to Tyler the following instrument:

"$1,000.

Athens, February 15, 1845. For value received, I promise to pay Francis Tyler and Levi Westbrook, or bearer, one thousand dollars, with interest, by the first day of June next. And I do hereby authorize any attorney of any court of record in Pennsylvania, to appear for me and confess judgment for the above sum to the holder of this single bill, with costs of suit, hereby releasing all errors and waiving stay of execution and the right of inquisition on real estate; also waiving the right of having any of my property appraised which may be levied upon, by virtue of any execution issued for the above sum.

L. SMITH."

On this instrument a judgment was entered for the plaintiff; and execution issued on the second day of June, 1845. On a question between the plaintiff, Tyler, and another execution creditor of Smith, whose execution bore a later date than Tyler's, the question was, whether Smith's obligation became due on the 1st of June, 1845, or whether it became due only on the 4th;-in other words whether it was or was not a negotiable instrument entitled to days of grace:

*297]

*The court below gave judgment for Tyler, and this writ of error issued.

Case and Overton, for plaintiff in error. The days of grace are part of the contract.(1) Nor will the fact, that a warrant of attorney is attached, alter or in any way affect that rightit is to be construed as if the note and the warrant were distinct instruments. A suit then, not being maintainable before the 5th of June, of course no execution could issue for the same debt at an earlier period.

Elrell and Willeston, contra, contended that by the agreement the judgment was to be entered as for an amount due on the 1st of June, and that the character of the note, if such it was, merged in that contract. But there never was a privilege of the days of grace; the judgment could not pass from hand to hand; and subsequent holders would certainly be bound to defalk any payments made on account of the judgment. These are principles irreconcilable with the rules regulating commercial paper.

(1) Bank of Washington v. Triplett, 1 Peters, 25; Thomas v. Shoemaker, 6 Watts & Sergeant, 179.

GIRSON, C. J. No case like the present, nor anything from which a principle applicable to it can be drawn, is found in the books. The note is for the payment of money; it is payable to bearer; and it is payable absolutely; yet it is obvious that it was not intended to be negotiable in a commercial sense, and that the maker was not to have the usual days of grace The debt is still between the original parties; and the contract by which it was created is to be interpreted, like any other, by their actual meaning. If they meant to make, not a promissory note, within the statute of Anne, but a special agreement with power to enter up judgment on it, they are bound by the result as they themselves viewed it. Such is one of the principles of Patterson v. Poindexter, and Boker v. Hazard, 6 Watts & Sergeant, 227, in which, however, there was no express promise. Nor would a subsequent holder take the paper on any other terms than those expressed in it. It has in it all the parts of a promissory note; but it has more; it contains not only a warrant to confess judgment with a release of errors, but an agreement to waive appraisement and stay of execution. But a negotiable bill or note is a courier without luggage. It is requisite that it be framed in the fewest possible words, and those importing the most certain and precise contract; and though this requisite be a minor one, it is entitled *to weight in determining a question of intention. To be within the statute, it must be free from contingencies or conditions that would embarrass it in its course; for a memorandum to control it, though endorsed on it, would be incorporated with it and destroy it. But a memorandum which is merely directory or collateral, will not affect it. The warrant and stipu lations incorporated with this note evince that the object of the parties was not a general, but a special one. Payment was to be made, not as is usual at so many days after date, but at a distant day certain; yet the negotiability of the note, if it had any, as well as its separate existence, was instantly liable to be merged in a judgment, and its circulation arrested by the debt being attached, as an encumbrance to the maker's land; and it was actually merged when it had nearly three months to run. Now it is hard to conceive how the commercial properties of a bill or note can be extinguished before it has come to maturity. That is not all. A warrant to confess judgment, not being a mercantile instrument, or a legitimate part of one, but a thing collateral, would not pass by endorsement

[*298

or delivery to a subsequent holder; and a curious question would be, whether it would survive as an accessory separated from its principal, in the hands of the payee for the benefit of his transferee. I am unable to see how it could authorize him to enter up judgment, for the use of another, on a note with which he had parted. But it may be said that his transfer would be a waiver of the warrant as a security for himself or any one else; and that subsequent holders would take the note without it. The principle is certainly applicable to a memorandum endorsed after signing, or one written on a separate paper. But the appearance of paper with such unusual stipulations incorporated with it, would be apt to startle commercial men as to their effect on the contract of endorsement, and make them reluctant to touch it. All this shows that these parties could not have intended to impress a commercial character on the note, dragging after it, as it would, a train of special provisions which would materially impede its circulation. As it was not a negotiable note within the statute, the usual days of grace could not be added to the ostensible day of payment; and as the judgment was ripe at the expiration of that day, the execution was sustained by it, and being prior in delivery to the sheriff, was entitled to priority of satisfaction.

Judgment affirmed.

*299] *McCORMICK v. TROTTER, ENDORSEE OF LYNN. In the Supreme Court of Pennsylvania.

LANCASTER JULY, 1823.

[REPORTED, FROM 10 SERGEANT AND RAWLE, 94-96.]

A note promising to pay A. B. or order, $500, in notes of the chartered banks of Pennsylvania, is not a negotiable note, on which the endorsee can sue in his own name.

THIS was an action originally brought in a county court of Pennsylvania, by Trotter, endorsee of Lynn, against McCormick, as the maker of a promissory note, by which he promised, two months after date, to pay to the said Lynn, or order, at the Harrisburg Bank, and in bank notes of the chartered banks in Pennsylvania, $500, for value received.

The question on the trial was whether the instrument was a

negotiable note which passed by endorsement and delivery. The court below thought that it was and rendered judgment accordingly. After argument in the Supreme Court of Pennsylvania by

Douglass, for the plaintiff in error, and by

Elder, contra.

The opinion of the court was delivered by

DUNCAN, J. It is impossible to sustain this judgment. The instrument was not assignable, nor the subject of the endorsement, so as to enable the assignee or endorsee, to sue the maker in his

own name.

Though courts of law are now in the constant habit of taking notice of the assignment of choses in action, and of giving effect to them, yet they always adhere to the formal objection, that the action should be brought in the name of the assignor, and not of the assignee.

The common law relaxed the rule at a very early period as to foreign bills of exchange, and afterwards, as to inland bills of exchange, and *the statute law enables the assignee or endorsee of a promissory note to maintain an action in his

own name.

[*300

At a very early period in the history of the province of Pennsylvania, 28th May, 1715, an act passed for signing bonds, specialties, and promissory notes, and enabling the assignee to sue in his own name. But this is confined to obligations, or promises to pay to any person or persons, their assigns or order, any sum of money. So is the statute of Anne. It is the legal definition of a promissory note, that it is a promise or engagement to pay a specific sum at a time therein limited, or on demand, or at sight, to a person there named, or his order, or to bearer. No precise form of words is necessary. It is sufficient if the note amounts to an absolute promise to pay money.

Stock contracts for delivering of six per cents., are not negotiable, though they may be rendered so by express stipulation. Reed v. Ingraham, 3 Dallas, 505.

Now the value of six per cents. is less precarious and fluctuating than the value of the notes of some chartered banks, at the time this note was given. The contract was for a specific matter, five hundred dollars, to be paid in bank notes of the chartered banks of Pennsylvania. It is not payable in money.