Lockwood, contrà.

1. A note must contain a legal promise for the certain payment of a certain sum: 1 Parsons on Notes and Bills 23, 24; Story on Prom. Notes, § 14; Bouvier's Law Dict., Due-Bill, Promissory Note and I. O. U. An acknowledgment of a debt is not a promissory note 1 Parsons on Notes & Bills 25; Byles on Bills 11, 23; Smith v. Allen, 5 Day 340; Beeching v. Westbrook, 8 M. & W. 412; Melanotte v. Teasdale, 13 Id. 216; Bowles v. Lambert, 54 Ill. 237. The note must contain and must express the promise of the debtor to pay the money: 1 Parsons on Notes & Bills 25.

2. The Statute of Limitations applies. Our courts have never adopted the expedient which has prevailed to some extent in other states, of taking cases out of the statute upon some doubtful or equivocal acknowledgment, but have always held that the party must have intended to relinquish its protection, or that its provisions must be applied: Hart's Appeal from Probate, 32 Conn. 539. An admission that the note was unpaid, accompanied by a claim that it was "outlawed," is not sufficient to remove the bar of the

statute: Sanford v. Clark, 29 Conn. 460. An offer to pay a certain sum in satisfaction of a larger one, will not remove the bar of the statute, even as it regards the sums actually offered, unless the offer is accepted when made: Bell v. Morrison, 1 Peters 351; Smith v. Eastman, 3 Cush. 355; Mumford v. Freeman, 8 Met. 432; Brush v. Barnard, 8 Johns. 407; McLellan v. Albee, 5 Shepley 184; 1 Smith Lead. Cas., part 2d, p. 876.

SEYMOUR, C. J.-The first question in this case is whether the writing sued upon is a promissory note within the meaning of those words in the Statute of Limitations. The statute is as follows: "No action shall be brought on any bond or writing obligatory, contract under seal, or promissory note not negotiable, but within seventeen years next after an action shall accrue."

Promissory notes not negotiable are by the statute above recited put upon the footing of specialties in regard to the period of limitation, and for most other purposes such notes have been regarded as specialties in Connecticut. The instrument however to which this distinction has been attached is the simple express promise to pay money in the stereotyped form familiar to all. The writing given in evidence in this case is a due-bill and nothing more. Such acknowledgments of debt are common and pass under the

name of due-bills. They are informal memoranda, sometimes here as in England in the form "I. O. U." They are not the promissory notes which are classed with specialties in the Statute of Limitations. The law implies indeed a promise to pay from such acknowledgments, but the promise is simply implied and not express. It is well said by SMITH, J., in Smith v. Allen, 5 Day 337, "Where a writing contains nothing more than a bare acknowledgment of a debt, it does not in legal construction import an express promise to pay; but where a writing imports not only the acknowledgment of a debt but an agreement to pay it, this amounts to an express contract."

In that case the words "on demand" were held to import and to be an express promise to pay. That case adopts the correct principle, namely, that to constitute a promissory note there must be an express as contradistinguished from an implied promise. The words "on demand" are here wanting. The words "value received," which are in the writing signed by the defendant, cannot be regarded as equivalent to the words "on demand." The case of Smith v. Allen went to the extreme limit in holding the writing there given to be a promissory note, and we do not feel at liberty to go further in that direction than the court then went.

The writing then not being a promissory note, the plaintiff's action is barred by the six years clause of the statute, unless revived by a new promise to pay.

The offer of the defendant to give a ton of coal for the note was not accepted. It was a mere offer of compromise, and clearly no acknowledgment to take the case out of the statute.

The other conversation between the parties, recited in the motion, taken together as one transaction, was held by the Court. of Common Pleas not to be sufficient evidence of a rew promise. The result of the interview was a refusal to pay. The opening of the conversation on the part of the defendant would seem to admit the justice of the plaintiff's demand. The expression of a wish "to settle the note" would seem to imply that it was justly due: but the word "settle" is somewhat equivocal, and taking the whole interview together, we think the Court of Common Pleas made no mistake in law in deciding as it did.

In this opinion PARK and CARPENTER, JJ., concurred.

FOSTER, J.-That the paper before us is more correctly described as a due-bill than as a promissory note, is unquestionable. That it would be regarded among business men, in the daily transactions of life, as conferring the same rights, and imposing the same liabilities, as a promissory note, seems to me equally unquestionable. It was so regarded by the parties to it; it was so treated and so spoken of whenever it was alluded to. This is manifest from the record; "The defendant came into the store of said Barker (one of the plaintiffs), and said to him, 'Have you that note?' or, Where is that note?' and that he wished to settle it.' Barker told him the note was in Mr. Stevenson's hands, &c.'" Any writing importing a debt, and an obligation to pay it, especially if it contains the words "for value received," is, in the popular judgment, a note. This instrument is clearly of that character. It was clearly the intent of the parties so to make it, and it is evident that they supposed they had so made it. To hold otherwise would seem to be contrary to the understanding and intent of the parties.

But it is claimed that this instrument is not, in law, a promissory note, and that the legislature, in passing the statutes of limitation, could never have intended to put such contracts on a footing with specialties.

Now if we examine the various works on bills of exchange and promissory notes, we do not find that the learned authors of those treatises agree upon any exact and precise definition of a promis. sory note. Chitty, Bayley, Byles, Story and Parsons, however, all agree that no particular words are necessary to make a bill or note. "It is sufficient if a note amount to an absolute promise to pay money" Chitty on Bills 428. Chancellor KENT, following substantially Mr. Justice BAYLEY, says, "A note is a written. promise, by one person to another, for the payment of money, at a specified time, and at all events:" 3 Com. 74. Par ons says, "A promissory note is, in its simplest form, only a written promise" 1 Parsons on Notes & Bills 14.

These definitions imply that a note must contain an express promise to pay. And Mr. Justice STORY says: "But it seems that, to constitute a good promissory note, there must be an express promise upon the face of the instrument to pay the money; for a mere promise implied by law, founded upon an acknowledged in

debtment, will not be sufficient." Story on Prom. Notes 14. Courts of the highest authority, however, both in England and in this country, hold otherwise; nor are all the text-writers so to be understood. "No precise words of contract are necessary in a promissory note, provided they amount, in legal effect, to a promise to pay:" Byles on Bills 8. "It is settled that a note need not contain the words 'promise to pay,' if there are other words of equivalent import:" 1 Parsons on Notes & Bills 24. What words. are of equivalent import," and are sufficient to raise a promise to pay, has occasioned much discussion. "The distinction between the cases on this point," says Mr. Justice STORY, in a note on the section above quoted, “is extremely nice, not to say sometimes very unsatisfactory." As long ago as 1795, Chief Justice EYRE, sitting at Nisi Prius, held an "I. O. U. eight guineas," to be merely an acknowledgement of a debt, and neither a promissory note, nor a receipt Fisher v. Leslie, 1 Esp. 425. In 1800, in the case of Guy v. Harris, reported in Chitty on Bills 526, Lord ELDON, whose authority is certainly not inferior to that of Chief Justice EYRE, held a similar paper to be a promissory note, and ruled it out when offered in evidence, because it had not a stamp. "I owe my father 4701. Jas. Israel:"-This paper was offered in evidence before Lord ELLENBOROUGH, and he said: "I entertain some doubts whether this paper ought not to have been stamped as a promissory note, but on the authority of Fisher v. Leslie, 1 Esq., I will receive it in evidence, though unstamped:" Israel v. Israel, 1 Camp. 499. Childers v. Boulnois, 8 Dow. & Ry. Nisi Prius Cas. 8, decided by Chief Justice ABBOTT, is to the same effect. See also Tompkins v. Ashby, 6 B. & C. 541; 9 Dow. & Ry. 543; 1 M. & W. 32; s. c. If a time be named for payment, these instruments are differently construed. In Brooks v. Elkins, 2 M. & W. 74, "I. O. U. 201., to be paid on the 22d inst.," was held to be either a promissory note, or an agreement for the payment of 107 .and upwards, and in either case required a stamp. "I. O. U. 851., to be paid May 5th," was held to be a good promissory note: Waithman v. Elzee, 1 C. & K. 35.

The cases are numerous where an instrument has been held to be a good note without an express promise to pay. "I do acknowledge myself to be indebted to A. in 7., to be paid on demand for value received." On demurrer to the declaration, the court,. VOL. XXIII.-3

after solemn argument, held that this was a good note within the statute: Casborne v. Dutton, 1 Selwyn's Nisi Prius 320. In the case of Morris v. Lee, the words were, "I promise to be accountable to J. S., or order, for 50l., value received by me," and it was held a good promissory note. The court say they "will take the word accountable as much as if it had been pay." They also notice the words value received. FORTESCUE, J., said, "This is a debt, being for value received, and not said on account:" 8 Mod. 362; 1 Strange 629; 2 Ld. Raym. 1396; s. c.

Turning to the American cases, we find in our own court the case of Smith v. Allen, 5 Day 337. This was brought on a paper in these words: "Due John Allen $94.91, on demand." The declaration counted on a promissory note, and alleged a promise to pay in the usual form, setting out the note in the declaration. The defendants demurred, and the Superior Court held the declaration sufficient. On writ of error brought, the Court of Errors sustained the decision.

Here was manifestly no express promise to pay; but the court held that there was one implied, and so sustained the claim of the plaintiff. The difference between this and the case at bar is very slight. This contains the words "on demand," that at bar the words "value received." The one by its terms is due on demand, and the promise to pay is, therefore, implied by law, the other is, in legal effect, due on demand, and it is difficult to see a good reason why the law does not as readily imply a promise to pay such a debt, as one due on demand by its own terms. Besides, a valuable consideration is expressed in the case at bar by the words "value received," while none is expressed in the case of Smith v. Allen. Since the case of Edgerton v. Edgerton, 8 Conn. 6, and the case of Bristol v. Warner, 19 Conn. 7, it is quite clear that, by the law of this state, a promissory note, not negotiable, and not purporting on its face to be for value received, does not imply a consideration. Smith v. Allen, and the case at bar, are alike in omitting the words "or order," and "or bearer," and so are alike non-negotiable. Such notes however are regarded as within the statute of 3 and 4 Anne: Smith v. Kendall, 6 T. R. 123:

Passing from this decision in our own court to the court of New York, where we are accustomed to find questions of mercantile and commercial law as ably discussed and as intelligently decided as