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Sect. 3. Bank

notes.

judged, that an action for money had and received will not lie against a finder of them, to recover the value, unless money has actually been received for them, though if not produced on the trial, the receipt of their value will be presumed '; nor can they be taken in execution'; nor is a tender of bank notes sufficient, if objected to at the time of the offer*, though, after such a tender, a creditor cannot arrest his debtor, it having been enacted, that no person shall be held to bail, unless the affidavit of debt allege that no offer has been made to pay the debt in bank notes payable on demand. The stealing of these notes is felony, and the forgery of them is also by different statutes declared to be felony '. They are assignable by delivery. A mode of enforcing payment of them was provided by 8 & 9 Wm. 3. c. 20, s. 50. but now when the right to receive payment is disputed, the course is to proceed by action against the bank. Possession is primâ facie evidence of property in a bank note. Therefore, in trover for a bank note, it is not a primâ facie case for the plaintiff to prove that the note belonged to him, and that the defendant afterwards converted it; and the defendant will not be called upon to show his title to the note, without evidence from the other side that he got possession of it malâ fide, or without consideration". And in Lowndes v. Anderson " it was held, that bank notes could not be followed by the legal owners into the

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Noyes v. Price and another, Sittings, London, post, Hill, Term, 16 Geo. 3. Select Cas. 242.

48.

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Longchamp v. Kenny, Dougl. 138.

3 Francis v. Nash, Rep. T. Hardw. 53.-Knight v. Criddle, 9 East.

Wright . Reed, 3 T. R. 554.-Wyatt v. Smee, 1 Bos. & Pul. 526.

5 38 Geo. 3. c. 1. s. 8.-43 Geo. 2. c. 18. s. 2.

6 2 Geo. 2. c. 25. s. 3.-9 Geo. 2. c. 18.

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15 Geo. 2. c. 14. s. II.—13 Geo. 3. c. 79. s. 1.—41 Geo. 3. c. 39. 2 East's P. C. 876, &c.

Francis v. Nash, Rep. T. Hardw. 53.

King v. Milsom, 2 Campb. 5.-Richard v. Carr, 1 Campb. 551. 10 Lowndes. Anderson, 13 East. 130.-1 Rose, 99, 102. n. a..

notes.

hands of bona fide holders for valuable consideration Sect. 3. Bank without notice. And Solomons v. Bank of England',

it was decided, that the holder of a bank note is primâ facie entitled to prompt payment of it, and cannot be affected by the previous fraud of any former holder in obtaining it, unless evidence be given to bring it home to his privity. But where a bank note for £500, had been fraudulently obtained by some person unknown; and on its being presented for payment sometime afterwards, by an agent of a foreign principal, information was given of the fraud; and the principal was desired to inform the bank how he came by it; but the only account he would give of it was, that he had received it in payment of goods from a man dressed in such a way of whom he knew nothing; and it was further proved, that bank notes of so large a value were not usually circulated in that foreign country; this was held to be sufficient evidence to be left to a jury of the principal's privity to the original fraud, in an action of trover brought by his agent to recover it from the bank, who had detained it under the authority of the original owner, to whom it properly belonged. And the question was not altered by the agent who received it, having after notice, made payments for his principal, which turned the balance in favour of such agent.

A formal set of words is, in general, no more essen

tial to the validity of a promissory note, cash note, or bank of England note, than it is to that of a bill of exchange. It is sufficient if a note amount to an absolute promise to pay money. And a note promising to account with another, or his order, for a certain sum, value received, is a valid promissory note, though it contain no formal promise to pay. So where the

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Solomons v. Bank of England, 13 East. 135.

2 Colehan v. Cooke, Willes, 396.; see the cases, ante, 53, 4-Bay1.3 4. Selw. 4th ed. 361, 2. 3.

3 Morris v. Lee, 8 Mod. 362.-1 Stra. 629.-Lord Raym. 1396. S. C.-2 Atk. 32. ante, 53, note 2.

Sect. 4. Form and missory notes, &c,

qualities of pro

Sect. 4. Form and note set forth in the declaration, was "I acknowledge qualities of pro

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imissory notes, &c. "myself to be indebted to A. in £.-to be paid on demand, for value received;" on demurrer to the declaration, the court held that this was a good note with in the statute; the words "to be paid," amounting to a promise to pay, observing that the same words in a lease would amount to a covenant to pay rent'. So a promissory note payable to B. (omitting the words "or order,") three months after date, was holden a good note within the statute. So, where a note was in this form, "I do acknowledge that Sir A. C, has delivered "to me all the bonds and notes for which £400. were paid to him on account of Colonel S. and that Sir A. "delivered to me Major G.'s receipt, and bill on me "for £10. which £10. and £15. 5s. a balance due to "Sir A. I am still indebted, and do promise to pay;" on demurrer to the declaration the note was adjudged good. And when the promise was by A. to pay so much to B. for a debt due from C. to B. it was holden, that it was within the statute, being an absolute promise, and as negotiable as if it had been generally for value received.

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But the mere acknowledgment of a debt, without some words from whence a promise to pay money can reasonably be inferred, it is said, will have no other operation than being evidence of a debt; and therefore the common memorandum, "IOU such a sum" has been determined not to amount to a promissory note, and need not be stamped. Nor is an instrument

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'Casborne v. Dutton, Scacc.M. 1 G. 2.-Selw. 4th ed. 563. note p. Smith v. Kindal, 6 T. R. 123. ante, 85, n. 5.-Moore v. Pain, Rep. T. Hardw. 283. where Lord Hardwicke, C. J. said this point had been ruled often.

3 Chadwick. Allen, Stra. 706. ante, 53.

4 Popplewell v. Wilson, 1 Stra. 264. on error, from C. P.

' Isracl v. Israel, 1 Campb. 493.-Fisher v. Leslie, 1 Esp. Rep. 426. But in Guy v. Harris, Sittings after Easter Term, 1800, at Guildhall, in the C. P. before Lord Eldon, such a note was attempted to be given in evidence by way of set-off, but his Lordship ruled that it could not be given in evidence, not being stamped, being a promissory note, though not negotiable. Mr. Serj. Marshall for the plaintiff, Mr. Serj. Best for the defendant. See Bayl. 4.-Manning's Index, 215.

qualities of pro

acknowledging the receipt of a draft for the payment Sect. 4. Form and of money, and promising to repay the money, a pro- missory notes, &c. missory note, but only a special agreement for the re-payment, depending on the contingency of the draft's being honoured'. It is advisable, however, to insert the words "value received "."

Promissory notes, given in pursuance of the Lord's act 32 Geo. 2. c. 28. s. 13., in order to prevent the debtor's discharge, must be given in a particular form, that statute enacting, that the prisoner shall be discharged, unless the creditor insist that he shall be detained in prison, and shall agree by writing, signed with his name or mark (or if he be out of Eng land,) under the hand of his attorney, to pay and allow the prisoner weekly a sum not exceeding 38: 6d. (or if more creditors than one insist on his detention, not exceeding 2s. a week each), to be paid on Monday in every week, so long as the prisoner shall continue in execution; and in every such case the prisoner shall be remanded. And the court has no power to moderate the sum to be paid to a prisoner on his being remanded, but a note must be signed for the full sum directed by the act. And if failure be made in payment of the said weekly sums, the prisoner, upon application to the court in term time, or in vacation to a judge, may, by order of the court or judge, be discharged out of custody, on executing an assignment and conveyance of his estate and effects. The decisions on this clause of the act have already been so ably collected, that it is not

necessary

here to state them *.

Certain requisites are indispensable to the validity Requisites of of all promissory notes; thus they must be made

▪ Williamson v. Bennett, 2 Campb. 417.-Ante, 60, 1.

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Bishop v. Young, 2 Bos. & Pul. 81.—Ante, 87,

S.

3 37 Geo. 3. c. 85. s. 3, 4.-Tidd. 6th edit. 381.; but see Barnes,

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notes.

qualities of pro

Sect. 4. Form and payable at all events, and not out of a particular missory notes,&c. fund, which may or may not be productive. But a statement of the consideration for which a note is made will not vitiate it. Notes must also be for the payment of money only, and not for the performance of any other act; on the latter principle it was adjudged, that a written promise to pay £300 to B. or order, "in three good East India Bonds," was not a promissory note'; and that an undertaking to pay money, and deliver horses and a wharf," on a parup ticular day, or an engagement "to pay money on demand, or surrender the body of A. B.7" would not operate as a note within the Statute of Anne.

A promise by the defendant to pay to plaintiff £26 within a month after Michaelmas, if defendant did not pay the £26 for which the plaintiff stood engaged for his brother T. B. is not a promissory note. So a promise to pay A. B. £- value received, on the death of C. D. provided he leaves either of us sufficient to pay the said sum, or if we shall be otherwise able to pay it; and a promise to pay money within so many days after the maker of the note should marry, are not within the statute. So where the promise was to pay A. F. £-out of the maker's money, that should arise from his reversion of £- when sold, and the declaration averred the sale of the reversion, yet it was holden that the note could not be declared on as a negotiable note under the statute, because the money was to be paid only on a contingency'. So where the promise was to pay £ on the sale or produce, im

Ante, 55, &c. .

2 Ante, 55, &c.

Ante, 63, 4.

* Ante, 58.

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5 Bul. Ni. Pri. 272.-Ante, 58.

Id.-Martin v. Chauntry, 2 Stra. 1271.-Ante, 58. n. 4.

Ante, 55.-Jenny d. Herle, 2 Ld. Raym. 1362.-Smith v. Boehm, Gilb. Law of Evid. 93. cited Ld. Raym. 1352.-Ante, 55. note 4. Williams v. Lucas, 1 P. W. 431. note 1.

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Appleby . Biddulph, ante, 56. n. 1.

9 Roberts v. Peake, 1 Burr. 323.-Ante, 56.-Beardsley v. Baldwin, Stra. 1151.-7 Mod. 417.-Ante, 56.

Carlos v. Fancourt, 5 T. R. 482.—Ante, 57.

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