Currier v. Lockwood.

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. Stevens' hands, etc.'" 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 promissory 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. Judge PARSONS 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 indebtment, 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 acknowledgment 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 £470. 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 Esp. 425, I will receive it in evidence, though uustamped." Israel v. Israel, 1 Camp. 499; Childers v. Boulnois, Dow. & Ry. Nisi Prius Cases, 8, decided by Chief Justice ABBOT, is to the same effect. See also Tompkins v. Ashby, 6 Barn. & Cress. 541; 9 Dow. & Ry. 543; S. C.. 1 Mees. & Wels. 32. If a time be named for payment, these instruments are differently construed. In Brooks v. Elkins, 2 Mees. & Wels. 74, “I. O. U. £20, to

Currier v. Lockwood.

be paid on the 22d inst.." was held to be either a promissory note, or an agreement for the payment of £10 and upwards, and in either case required a stamp. "I. O. U. £85, to be paid May 5th," was held to be a good promissory note. Waithman v. Elzee, 1 Car. & Kirw. 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 £ to be paid on demand for value received." On demurrer to the declaration, the court, 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 £50, 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; S. C., 2 Ld. Raym. 1396.

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 id. 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 courts of New York, where we are accustomed to find questions of mercantile and commercial law as ably discussed and as intelligently decided as in any of our sister States, we find the case of Russell v. Whipple, 2 Cow. 536. The suit was on this paper: "Due S., or bearer, $10." This differs from the case at bar in adding the words 66 or bearer," and omits the words "value received." The court said it was a promissory note, and that the case was too plain for argument.

In Kimball v. Huntington, 10 Wend. 675, this paper, "Due R. $325, payable on demand," was held admissible in evidence as a promissory note. Judge NELSON says: "The acknowledgment of indebtedness, on its face, implies a promise to pay the plaintiffs, and the payment by its terms is to be in money absolutely, on demand."

In Luqueer v. Prosser, 1 Hill, 259, Judge COWAN says: "If there be in legal effect an absolute promise that money shall be paid, all the rest is a dispute

Mather v. Chapman.

about words. * * The whole inquiry is, does the paper import an engagement that money shall be paid, absolutely? If it do, no matter by what words, it is a good note."

In Sackett v. Spencer, 29 Barb. 180, this paper, "Due S. or bearer, $340, for value received with interest," the court say "is a good promissory note, and if It specifies no time of payment, it is, in legal effect, payable immediately, and without grace."

In Franklin v. March, 6 N. H. 364, the Supreme Court of New Hampshire held this paper, “Good to R. C. or order, for $30, borrowed money," to be a good promissory note.

In addition to the cases above cited, the following are very strong authorities to sustain the claim that this is a promissory note. Cummings v. Freeman, 2 Humph. 143; Harrow v. Dugan, 6 Dana, 341; Fleming v. Burge, 6 Ala. 373; Finney v. Shirley, 7 Mo. 42; McGowan v. West, id. 569; Lorne v. Murphy, 9 Ga. 338. In Johnson v. Johnson, 1 Ala. 263, the court say: “The acknowledgment of a debt, due for a valuable consideration, clearly implies a promise to pay it on request."

The record discloses the fact that the paper before us was given for the purchase of clothing, and that the price of it has never been paid. Our statute of limitation bars all right of action upon it, unless it is recognized as a promissory note. So to recognize it will in my opinion do much less violence to law than will be done to justice if we permit this defendant thus to escape the payment of an honest debt for the necessaries of life.

I would admit the paper offered in evidence in support of the first count in the declaration.

In this opinion PHELPS, J., concurred.

MATHER V. CHAPMAN.

(40 Conn. 882.)

Bea shore-right to sea-weed

Sea-weed cast upon the shore between high and low-water mark belongs to the public, and may be lawfully appropriated by any person. (See note, p. 51).

TRES

\RESPASS for taking and carrying away a quantity of sea-weed which had been thrown by the action of the sea upon the shore of Jupiter Point, below high-water mark. So far as material to the principal point in the case, the opinion contains the facts.

Lippitt and Halsey, for plaintiffs.

Brandegee and Waller, for defendant.

Mather v. Chapman.

H

SEYMOUR, C. J. The first count of the plaintiffs' declaration is in trespass for the taking and converting to his own use by the defendant of large quantities of sea-weed alleged to be the proper goods and estate of the plaintiffs. This sea-weed was cast upon the shore adjoining the defendant's land, and was there, below highwater mark, taken by the defendant and converted to his own use. The Court of Common Pleas, against the request of the plaintiffs, instructed the jury, in substance, that sea-weed cast and left upon the shore (that is, between ordinary high and low-water mark) prima facie belongs to the public and may lawfully be appropriated by the first occupant.

To this charge the plaintiffs object, and the principal question in the case arises upon this objection.

A different question arises under the second count, which will be considered in its proper place.

It

It is conceded that by the settled law of Connecticut the title of a riparian proprietor terminates at ordinary high-water mark. is also conceded that though his title in fee thus terminates, yet he has certain privileges in the adjoining waters.

Among the most important of these privileges are: (1.) That of access to the deep sea; (2.) The right to extend his lands into the water by means of wharves, subject to the qualification that he thereby does no injury to the free navigation of the water by the public; (3.) The right by accretion to whatever lands by natural or artificial means are reclaimed from the sea, subject, however, to certain qualifications not necessary here to be mentioned.

The plaintiffs claim that among the privileges of the riparian proprietor is also that of the exclusive right to the sea-weed which is cast upon the shore and left there by the receding tide.

In respect to the weed cast by extraordinary floods upon the land of the proprietor and there left above ordinary high-water mark, the law of this State is settled, in conformity with what we understand to be the common law of England. The owner of the soil has it ratione soli. No other person can then take it without a trespass upon the owner's land, and as owner of the land he is deemed to be constructively the first occupant.

But below high-water mark the soil does not belong to the owner of the upland. The sea-weed in dispute was not taken from the plaintiffs' land, and their title, if they have a title, is not rations scli. No trespass on the plaintiffs' land was committed by the

Mather v. Chapman.

defendant in taking the weed, for the taking of which recovery is sought in this court.

Upon what ground then can the plaintiffs sustain the title which they claim to the weed? While it was floating on the tide it was publici juris. Why, when it is left on the shore by the receding tide, should it become their property?

In Massachusetts and Maine, by virtue of the Colonial Ordinance of 1641, the individual title of proprietors adjoining navigable water extends to low-water mark. Sea-weed left by the receding tides being then on private property, the owner of the soil has title ratione soli not only to sea-weed but to other articles cast upon and left on the shore. Thus in Barker v. Bates, 13 Pick. 255, a stick of timber was thrown up and had lodged on the shore within the old colony of Plymouth. The question is largely discussed by SHAW, C. J., whether the ordinance of 1641 extends to the colony of Plymouth. That being settled, the learned judge proceeds to say: "Considering it as thus established that the place upon which this timber was thrown and had lodged was the soil and freehold of the plaintiff, the defendants cannot justify their entry for the purpose of taking away or marking the timber. We are of opinion that such entry was a trespass, and that, as between the plaintiff and defendant, the plaintiff had, in virtue of his title to the soil, the preferable right of possession, and that the plaintiff has a right to recover the agreed value of the timber."

The cases therefore in Massachusetts and Maine which decide that sea-weed left on the shore belongs to the riparian proprietor have no application here. In New Hampshire the Massachusetts ordinance is adopted as law.

In New York the common-law rule is adopted, as with us, in relation to the boundary line between the public and the riparian proprietor, and it is claimed that in Emans v. Turnbull, 2 Johns. 313, the question before us is decided in conformity with the plaintiffs' claim. The judgment in that case is pronounced by a judge of profound learning, whose opinion upon the point now under discussion, if really given, would be entitled to great weight; but we are inclined to think that the sea-weed in that case was cast upon the land of the plaintiff. The main argument at the bar and on the bench relates to the title to the locus in quo. Chief Justice KENT says: "If the marine increase be by small and imperceptible degrees, it goes to the owner of the land. The sea-weed must be supposed to have accumulated gradually."