time, with a proviso that upon surrender of the note before that time the company should issue shares of stock for it, held to be a promissory note, and the indorser liable: Hodges v. Shuler, 24 Barbour 68.

The current rate of exchange must be proved by extrinsic evidence; therefore a promise to pay a sum certain, with the current rate of exchange added, is not a negotiable note, but a special promise, and requires proof of consideration: Lowe v. Bliss, 24 Illinois 168; contra, Leggett v. Jones, 11 Wisconsin 124. See Smith v. Kendall, 9 Michigan 241; Johnson v. Frisbie, 15 Michigan 286; Hill v. Todd, 29 Illinois 101; Clauser v. Stone, Ibid. 114. A promise in writing to pay a certain sum to A. or order at a certain time and place, "with exchange on New York," is not within the statute of Anne: Read v. McNulty, 12 Richardson (Law) 445. A note expressed to be payable, with current rate of exchange, at the place where it is drawn and is to be discharged, is payable in coin, and there is no rate of exchange connected with it; these words are without significance: Hill v. Todd, 29 Illinois 101; Clauser v. Stone, Ibid. 114. A note cannot be made payable to one of two persons in the alternative: Musselman v. Oakes, 19 Illinois 81; Osgood v. Pearson, 4 Gray 455; Childs v. Davidson, 38 Illinois 437. An instrument payable to the estate of A. B., deceased, is not valid as a promissory note: Tittle v. Thomas, 30 Mississippi 122. A. promised in writing to B. or bearer to pay a certain sum per acre for as many acres as a specified tract contained. He afterwards indorsed the number of acres-held that it was a promissory note from the time of the indorsement: Smith v. Clopton, 4 Texas 109. A note promising to pay when the maker can make it convenient, with interest till paid, is a valid promise to pay in a reasonable time: Lewis v. Tipton, 10 Ohio (N. S.) 88.

A written promise to pay a sum certain, absolutely and unconditionally, at a time specified on its face, is a good promissory note, although a memorandum at the foot of it states a different mode in which it may be discharged: Pool v. McCrary, 1 Kelly 319. A certificate of deposit of a certain sum of money, payable at a future day, with interest till due, for the use of the person named, and to his order, is a negotiable promissory note: Miller v. Austin, 13 Howard, S. C. Rep. 215; Carey v. McDougald, 7 Georgia 84; Lowe v. Murphy, 9 Ibid. 338. There are conflicting cases as to whether certificates of deposit are or are not promissory notes: Patterson v. Poindexter, 6 Watts & Serg. 227; Lebanon Bank v. Mangan, 4 Casey 452; Wilton v. Adams, 4 California 37; Fells Point Co. v. Weedon, 18 Maryland 320; Bean v. Briggs, 1 Clarke 488; Austin v. Miller, 5 McLean 153; Laughlin v. Marshall, 19 Illinois 390; Howe v. Hartness, 11 Ohio 449; Smilie v. Stevens, 39 Vermont 315; Hunt v. Divine, 37 Illinois 137; Phelps v. Town, 14 Michigan 374; Bellows Falls Bank v. Rutland County Bank, 40 Vermont 377; Poorman v. Mills, 35 California 118; Easton v. Hyde, 13 Minnesota 90; Blood v. Northup, 1 Kansas 28; Drake v. Markle, 1 Kansas 28; Ford v. Mitchell, 15 Wisconsin 304; Platt v. Sauk Co. Bank, 17 Ibid. 222; Lindsay v. McClelland, 18 Ibid. 481. So as to the question whether coupons and coupon bonds are negotiable: see Myers v. York R. R. Co., 43 Maine 232; Morris Canal v. Fisher, 1 Stockton 667; Carr v. Le Fevre, 3 Casey 413; Diamond v. Lawrence Co., 1 Wright 353; Commonwealth v. Commissioners, Ibid. 237.

The person who signs the note is called the maker. The instrument is not complete and available until delivery by the maker. (e)'

At common law, no note of hand was transferable; and before the stat. of 3 & 4 Anne, c. 9, it was the opinion of Lord Holt and the majority of the judges that no action could be maintained, even by the payee, on a promissory note as an instrument, but that it was only evidence of a *debt.(f) That statute, however, makes promissory notes assignable and indorsable, like bills of [*6] exchange, and enables the holder to bring his action on the note itself.

Under the statute of Anne, foreign notes may be declared upon and indorsed." They are," observes the Court of K. B., "within the words and the spirit of the Act; the words are all notes.' The Act was made for the advancement of trade, and ought, therefore, to receive a liberal construction. It is for the advantage of commerce that foreign as well as inland bills should be negotiable."(g)

(e) Chapman v. Cotterell, 34 L. J. 186, Exch.

(f) Buller v. Cripps, 6 Mod. 29; Clerke v. Martin, 2 Ld. Raym. 757; Story v. Atkins, 2 Ld. Raym. 1427; 2 Stra. 719, s. c.; Brown v. Harraden, 4. T. R. 148; Trier v. Bridgman, 2 East 359.

(g) Milne v. Graham, 1 B. & C. 192 (8 E. C. L. R.); 2 D. & R. 294, s. c.; Houriet v. Morris, 3 Camp. 303; Bentley v. Northouse, 1 M. & M. 66. But it was at one time thought that the act did not extend to notes made abroad: Carr v. Shaw, H. T. 39 Geo. 3; Bay. 23.

It is important to remember this remark. The maker of a note is sometimes called the drawer, but inaccurately. It has a tendency to confound the case of the maker of a note with that of the drawer of a bill. The maker of a note stands in the same position as the acceptor of a bill, liable primarily and at all events, while the drawer of a bill is only liable upon non-acceptance or non-payment and due notice. The indorser of a note is said to be a drawer of a bill upon the maker accepted in advance, in favor of the indorsee, if the indorsement be special, or in favor of the bearer, if the indorsement is in blank. The position of the drawer of a check on a bank or banker is somewhat peculiar, as he is held to be primarily liable as principal debtor, unless by the failure to present he has been injured.

Delivery is necessary to the complete execution of a note; if the payee obtain possession by fraud, he cannot maintain an action thereon: Carter v. McClintock, 29 Missouri 464.

One who signs without authority the name of another or a petitioner's name for the use of the firm, in which he had no interest, is not himself liable as maker: Bartlett v. Tucker, 104 Mass. 336.

It has been suggested to be a doubtful point, whether this statute makes English notes assignable abroad, (h) but it is now decided that it does.(i)

No precise form of words is essential to the validity either of a bill of exchange or of a promissory note.(j)1

But

A note cannot be made by a man to himself without more. if made to himself or order, and indorsed in blank, it becomes a note payable to bearer; (k) and if specially indorsed it becomes a note payable to the indorsee or order.(7)2

(h) De la Chaumette v. The Bank of England, 9 B. & C. 208 (17 E. C. L. R.). (i) s. c., 2 B. & Ad. 385 (22 E. C. L. R.). As to the transfer abroad of notes made abroad and English notes, see the chapter on Foreign Bills and FOREIGN LAW.

(j) Chadwick v. Allan, Stra. 706; Peto v. Reynolds, 9 Exch. 410; Reynolds v. Peto, 11 Exch. 418.

(k) Browne v. De Winton, 17 L. J., C. P. 281; 6 C. B. 336 (60 E. C. L. R.),

S. C.

(1) Gay v. Lander, 17 L. J., C. P. 286; 6 C. B. 336 (60 E. C. L. R.). See also Wood v. Mytton, 10 Q. B. 805 (59 E. C. L. R.), and Flight v. Maclean, 16 M. & W. 51. So in America it has been held that an instrument payable to the maker and indorsed by him is a promissory note: Maldow v. Caldwell, 7 Missouri 563. And see 55 Geo. 3, c. 184, Sched. pt. i.

1 An instrument in form of a bond, but without seal, is a note: Woodward v. Genet, 2 Hilton 526. Where by mistake and ignorance a seal had been attached to the firm name, signed to a note given for value-held that equity would allow the plaintiff to recover as if there had been no seal: Lynam v. Califer, 64 North Car. 572. A note in pencil is valid while legible: Reed v. Rourk, 14 Texas 329.

2 A note made payable to the maker or order, Miller v. Weeks, 22 Penna. Stat. Rep. 89, and indorsed by him, is a promissory note, and may be declared on as such by the holder, without averring a consideration: Muldrow v. Caldwell, 7 Missouri 563. A promissory note made payable to the maker's own order, and by him indorsed and delivered, is in legal effect only an ordinary promissory note. The first indorsee does not take a derivative but a primitive title: Scull v. Edwards, 8 English 24. When there is any ambiguity or uncertainty in the terms of the instrument, it may, especially against the party negotiating or making it, be so construed as to give effect to it according to the presumed intention of the parties; and therefore, where a note was drawn in these terms: "Borrowed of J. S., fifty dollars, which I promise never to pay," it was held the word never might be rejected. So where an instrument was in the form of a note, drawn in favor of the maker, and indorsed by him, but addressed to a third person, and the name of that third

A note by which the defendant and four other persons promised to pay 7501. "to our and each of our order," and indorsed by defendant alone, was held good.(m)

A note payable to the maker's order, and afterwards indorsed, should be declared on according to the legal effect of the indorsement.(n)

*Nor can there be a note by the maker to himself and an[*7] other man.(0) Nor a joint note by the maker and others to himself. But such a note, if joint and several, may be valid at the suit of the payee, as to the several contracts of his co-makers.(p)

A note may be made payable by installments and yet be within the statute of 3 & 4 Anne, c. 9.(4) Days of grace are allowed on each installment.(r)'

(m) Absolon v. Marks, 11 Q. B. 19 (63 E. C. L. R.).

(n) Hooper v. Williams, 2 Exch. 13; Flight v. Maclean, 16 M. & W. 51. (0) See Moffatt v. Van Millingen, 2 B. & P. 124, n. ; Mainwaring v. Newman, Ibid. 120. See Teague v. Hubbard, 8 B. & C. 345 (15 E. C. L. R.). But indorsement may remove the difficulty. Query as to the effect of survivorship. (p) Beecham v. Smith, 27 L. J., Q. B. 257; E. B. & E. 442, s. c. (96 E. C. L. R.).

(9) Orridge v. Sherborn, 11 M. & W. 374; 12 L. J., Exch. 313, s. c. (r) Ibid.

person written across the face of it, it was held by the Court of King's Bench to be good as a promissory note. "It is an instrument," said Lord Tenterden, "of an ambiguous nature, and I think that where a party issues an instrument of an ambiguous nature the law ought to allow the holder, at his option, to treat it either as a promissory note or a bill of exchange:" Edis v. Bury, 6 Barn. & Cressw. 433; 13 Eng. Com. Law Rep. A promissory note, signed by several persons, and payable to one of their number or his order, cannot, in the name of the payee, be enforced at law as a joint promise against all the signers. But when such a note is indorsed to a third person, it immediately becomes operative as a valid contract from the date of the transfer, and may be enforced by a joint action against all the makers in the name of the indorsee: Heywood v. Wright, 14 New Hamp. 73; Rambo v. Metz, 5 Strobhart 108. And see Muldrow v. Caldwell, 7 Missouri 563. A promise in writing by one firm, to pay a sum certain, on a specified day, to another firm, both having a common partner, is not a promissory note until assigned; when assigned by the latter firm, the assignee must be regarded, as between himself and the makers, as the real payee, and may maintain an action in his own name against the makers: Murdock v. Caruthers, 21 Alabama 785.

1

1 Coffin v. Loring, 5 Allen 153. A premium note given to an insurance

It is conceived that presentment and notice of dishonor is required when each installment falls due; but that laches as to one installment in ordinary cases only discharges an indorser as to that one. And that a note payable by installments cannot be indorsed over for less than the entire sum due upon it.

A note payable by installments is within the statute, although it contain a provision that on failure of payment of one installment the whole debt is to become payable.(8)

A note by two or more makers may be either joint only or joint and several. A note signed by more than one person, and beginning, "We promise," etc., is a joint note only. A joint and several note usually expresses that the makers jointly and severally promise. But a note signed by more than one person, and beginning, "I promise," etc., is several as well as joint.(t) So, a note beginning in the singular, "I promise," and signed by one partner for his co-partners, is the joint note of all, (u) and has been held to be also the several note of the signing party.(v)1

(s) Carlon v. Kenealy, 12 M. & W. 139.

(t) March v. Ward, Peake's Rep. 130; Clerk v. Blackstock, Holt, N. P. C. 474 (3 E. C. L. R.). So it has been held in America: Hemmenway v. Stone, 7 Mass. 58; Barnett v. Skinner, 2 Bailey 88. So a bond in the singular number, executed by several, is several as well as joint: Sayer v. Chaytor, 1 Lutw. 695; Galway v. Mathew, 1 Camp. 403; 10 East 264, s. c. As to a joint or joint and several warrant of attorney see Dalrymple v. Fraser, 15 L. J., C. P. 193; 2 C. B. 698, s. c. (52 E. C. L. R.).

(u) Doty v. Smith, 11 Johnson's American Rep. 543.

(v) Hall v. Smith, 1 B. & C. 407 (8 E. C. L. R.); 2 D. & R. 584; Lord Galway v. Mathew, 1 Camp. 403. But Hall v. Smith seems to be overruled in Ex parte Buckley, 14 M. & W. 475; 15 L. J., Bkcy. 3, s. c. See also Maclae v. Sutherland, 3 E. & B. 1 (77 E. C. L. R.).

company, promising to pay in such portions and at such times as the directors may require, is a promissory note: Washington Ins. Co. v. Miller, 26 Vermont 77; Van Buskirk v. Day, 32 Illinois 260; Protection Ins. Co. v. Bell, 31 Conn. 534; Wright v. Irwin, 33 Michigan 32; White v. Smith, 77 Illinois 351.

A note in the form "I promise," etc., subscribed by two persons, is a joint and several note: Hemmenway v. Stone, 7 Mass. 58; Barnett v. Skinner, 2 Bailey 88; Partridge v. Calby, 19 Barbour, S. C. Rep. 248; Ladd v. Baker, 6 Foster 76; Lane v. Salter, 4 Robertson 239; Maiden v. Webster, 30 Indiana 317; Monson v. Drakeley, 40 Conn. 583; Hapkins v. Lane, 4 Thomp. L. C. 311; Ely v. Clat, 19 Hun. 35; Keller v. McHuffman, 15 W.