had been paid; and so too the drawer, if the check has come to the hands of the payee.(y) Where the crossing has been obliterated or tampered with, a banker paying the check bona fide shall not be responsible, nor shall the payment be called in question.(z) If a check crossed either generally or specially bear the words "not negotiable," the transferee shall neither have nor be capable of giving a better title than his transferor had. (a) These words may be added by a lawful holder to any crossed check. A banker bona fide receiving payment for a customer, of a check crossed to himself, shall not, in case the title to the check prove defective, incur any liability to the true owner merely on account of having received such payment.(b)

(y) Sec. 9.
(a) Sec. 12.

(z) Sec. 11.

(b) Sec. 12.

1

A MERE acknowledgment of a debt does not amount to a promissory note.1

1 That a due bill is a promissory note, see Cummings v. Freeman, 2 Humph. 143; Finney v. Shirley, 7 Missouri 42; McGowen v. West, Ibid. 569; Harrow v. Dugan, 6 Dana 341; Marrigan v. Page, 4 Humph. 247. A written acknowledgment of indebtedness in a certain sum to a certain person, with a statement of the consideration, is a promissory note: Fleming v. Burge, 6 Alabama 373. The plaintiff declared on the following instrument, signed by the defendant:"This is to certify that I did, in the year 1844, purchase of A. his tan-yard and stock, for which I did promise to pay B., for the benefit of A., four hundred and seventy-five dollars; which amount I do hereby acknowledge to be unpaid and yet due; and one note of hand for fifty-three dollars and fifty cents, which note is said to be lost or mislaid, each amount bearing interest from January 1, 1845;"-held that the foregoing instrument, in legal contemplation, was a due bill and might be declared on as a promissory note: Lowe v. Murphy, 9 Georgia 338. A due bill to bearer-without time is a promissory note payable immediately and not entitled to grace: Sachett v. Spencer, 29 Barbour 180. Due A. B. or order on demand is a promissory note: Carow v. Hayes, 47 Maine 257; Brady v. Chandler, 31 Missouri 28.

A writing, "Due H. or order the sum, &c., for value received of him, and on settlement up to date," signed "M.," is a promissory note payable immediately: Huyck v. Meador, 24 Ark. 191. "N. O. W. Cr. By labor at $4 per day, $67, good to bearer," held to be a negotiable promissory note: Hulsey v. Winslow, 59 Maine 170. A paper as follows: "$525. Conger, August 23, 1865. Due G. S. W. on corn five hundred and twenty-five dollars, A. B.," is a negotiable promissory note and should be stamped as such: Jacquin v. Warren, 40 Illinois 459. A note in this form: "Due W. B. D. or order," signed by two persons, is a joint note: Bacon v. Bicknell, 17 Wisc. 523.

"I owe the estate of T. W. $190 15, May 13, 1863," held not a promissory note: Bowles v. Lambert, 54 Illinois 237. A deposit book issued by a savings bank is not negotiable, and the assignee cannot maintain an action on it in his own name against the bank: Howard v. Windham County Savings Bank, 40 Vermont 597.

Such an acknowledgment is frequently made in an abbreviated. form, thus:

London, 1st January, 1866.

Mr. A. B.

IQ U £100.

C. D.

An acknowledgment of a debt in this form is called an IO U. It is evidence of an account stated, but not of money lent.(a)

Not amounting to a promissory note, (b) and being merely evidence of a debt due by virtue of some antecedent contract, it requires no stamp.(c) Nor indeed is a stamp required for any instrument which is merely an acknowledgment of money deposited to be accounted for, and not a receipt for money antecedently due.(d) Therefore a paper stating that the party signing it had certain bills in his hands, which he held to get discounted or return on demand, requires no stamp.(e)

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But if the IO U contain an agreement that it is to be paid on a given day it will be a promissory note, and must *be stamped as such. And if the contracting words be such as to make it not a promissory note, but an agreement, it must be stamped accordingly, (f) unless it be under 57. in amount.(g)

The following instrument was held to be a mere I O U, not to be a promissory note, and to require no stamp: "1839, Nov. 11,

(a) Fesenmayer v. Adcock, 16 M. & W. 449.

(b) But if the consideration be stated, it has been held in America to be a promissory note: Fleming v. Burge, 6 Alabama 373.

(c) Fisher v. Leslie, 1 Esp. 425; Israel v. Israel, 1 Camp. 499; Childers v. Boulnois, D. & R. N. P. C. 8; Beeching v. Westbrook, 8 M. & W. 412.

(d) Tompkins v. Ashby, 6 B. & C. 541 (13 E. C. L. R.); 9 D. & R. 543; 1 M. & M. 32, s. c.; Casborne v. Dutton, Selwyn's N. P. 381, 9th ed.; Payne v. Jenkins, 4 C. & P. 324 (19 E. C. L. R.); Hopkins v. Abbott, L. R. 19 Eq.

222.

(e) Mullett v. Hutchison, 3 C. & P. 92 (14 E. C. L. R.); 7 B. & C. 639 (14 E. C. L. R.), s. c.; Langdon v. Wilson, 2 Man. & R. 10; Williamson v. Bennett, 2 Camp. 417; Horne v. Redfearn, 4 Bing. N. C. 433 (33 E. C. L. R.); 6 Scott 260, s. c.

(ƒ) Brooks v. Elkins, 2 M. & W. 54.

(9) Evans v. Phillpotts, 9 C. & P. 270 (38 E. C. L. R.); 23 Vict. c. 15; 33 & 34 Vict. c. 97, Sched.

I OU forty-five pounds thirteen shillings, which I borrowed of Mrs. Melanotte, and to pay her five per cent. till paid."(h) An instrument in this form, "I O Mr. John Gould the sum of 2001. for value received," requires no stamp.(i)

It is conceived that a mere I O U, given by a surety for the debt of another man, is void by the Statute of Frauds. (k) But perhaps the Mercantile Law Amendment Act (19 & 20 Vict. c. 97, s. 3), which removes the necessity of the consideration appearing in writing, may obviate the objection.(1)

An IOU ought regularly to be addressed to the creditor by name; but though not addressed to any one it will be evidence for the plaintiff, if produced by him.(m) This rule was convenient and safe. For, before the alteration of the law making parties to the action competent witnesses, if the IOU were given (as it often is) when no one but the plaintiff and defendant was present, it would have been impossible for the plaintiff to prove how he became possessed of it; but if the IO U were given to a third party the defendant had ordinarily the means of proving it.

It has been held that a bill in equity would lie to discover whether an IO U were given for a gaming debt.(n)

There are cases where the court will restrain an action on an IO U.(0)

(h) Melanotte v. Teasdale, 13 M. & W. 216; Smith v. Smith, 1 F. & F. 539. (i) Gould v. Coombs, 14 L. J. C. P. 175; 1 C. B. 543 (50 E. C. L. R.), s. c. (k) So held by the Court of Exchequer in 1845. Admitted by counsel to be so. And see Gould v. Coombs, 14 L. J. C. P. 175; 1 C. B. 550 (50 E. C. L. R.).

(7) An I O U jointly signed by debtor and surety was held evidence of a joint account stated with creditor: Buck v. Hurst, L. R. 1 C. P. 297.

(m) Curtis v. Rickards, 1 M. & G. 46; 1 Scott N. R. 155; Douglas v. Holme, 12 A. & E. 146 (40 E. C. L. R.); Fisher v. Leslie, 1 Esp. 427; Fesenmayer v. Adcock, 16 M. & W. 449.

(n) Wilkinson v. L'Eaugier, 2 Y. & Col. 366.

(0) Quarrier v. Colston, 12 L. J. Ch. 57; 6 Jur. 959.

OF THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR NOTE.

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