Country bank notes are also a legal tender, unless objected to, and are considered as cash. (m)

Assumpsit for money had and received would lie for country bank notes and checks which have been treated as money,(n) but not otherwise; (o) for it has been held that an action for money had and received would not lie against the finder of lost notes unless they have been turned into money or treated by the defendant as money.1

No precise words of contract are essential in a promissory note, provided they amount in legal effect to an unconditional promise to pay. Thus, "I promise to account with A. B. or order for 50l., value received by me," has been held a good note within the stat

[*11] ute.(p) So, "I do acknowledge *myself to be indebted to A.

in 1007., to be paid on demand for value received," was, after

(m) Chitty 521; Owenson v. Morse, 7 T. R. 64; Ward v. Evans, 2 Ld. Raym. 928; Tiley v. Coursier, K. B. 1817; overruling Mills v. Stafford, Peake, N. P. 240, n.; Lockyer v. Jones, Peake, N. P. 240, n.; Polglass v. Oliver, 2 C. & J. 15; 2 Tyr. 89, s. c.

(n) Pickard v. Bankes, 13 East 20; Spratt v. Hobhouse, 4 Bing. 173 (13 E. C. L. R.); 12 Moo. 395, s. c.

(0) Noyes v. Price, Chitty 354.

(p) Morris v. Lee, 2 Ld. Raym. 1396; 1 Stra. 629; 8 Mod. 362, s. c.

which, on account of their being payable on demand, are considered as cash, and, like bankers' checks, are transferable by delivery and are governed by the same laws and rules as bills of exchange. So long ago as the time of Lord Holt (Ld. Raym. 744, 1 Salk. 133) goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be demanded in a reasonable time and not paid it will charge him who gave the bill:" per Kent, J., in Crugar v. Armstrong, 3 Johns. Cas. 5.

1 Bank notes and any other property received as money will support the action the same as if money itself had been received: Mason v. Waite, 17 Mass. 560; Ainslie v. Wilson, 7 Cowen 662; Arms v. Ashley, 4 Pick. 74; Murray v. Pate, 6 Dana 335; Kellogg v. Bulding, 7 Howard (Miss.) 340; Houx v. Rufull, 10 Missouri 246; Muir v. Rand, 2 Carter (Indiana) 291. Negotiable notes received by defendant are often regarded as money: Floyd v. Day, 3 Mass. 405; Hemmenway v. Bradford, 14 Mass. 122; Willie v. Green, 2 N. Hamp. 333; contra, Mercer v. Tolen, Anthon 119. Positive evidence is not in all cases necessary that the defendant has received money belonging to the plaintiff; but when, from the facts proved, it is a fair presumption that he has received it, the action is maintainable: Tuttle v. Mayo, 7 Johns. 132; Hatten v. Robinson, 4 Blackford 479; Haskins v. Dunham, Anthon 81; Hutchinson v. Phillips, 6 English 270; Mair v. Rand, 2 Carter (Indiana) 291.

solemn argument, held to be a good note within the statute, the words "to be paid" amounting to a promise to pay; the court observing that the same words in a lease would amount to a covenant to pay rent.(g) And where for an executed consideration a note was given, expressed to be "for 201. borrowed and received," but at the end were the words "which I promise never to pay," Lord Macclesfield rejected the word never.(r) For a contract ought to be expounded

(q) Casborne v. Dutton, S. N. P. 401; Brooks v. Elkins, 2 M. & W. 74. But in Horne v. Redfearn (4 Bing. N. C. 433 (33 E. C. L. R.); 6 Scott 260, s. c.), the following instrument was held not to be a promissory note: "I have received the 201. which I borrowed of you, and I have to be accountable for the same sum with interest."

In Jarvis v. Wilkins, 7 M. & W. 410, the following instrument was held to be a guaranty, and not a note: "Sept. 11, 1839. I undertake to pay to Mr. Robert Jarvis the sum of 61. 4s. for a suit of clothes ordered by Daniel Page." The court observed that the expression "ordered" showed that the consideration was executory.

“I, R. J. M., owe Mrs. E. the sum of 6l., which is to be paid by installments for rent. Signed, R. J. M." Held not to be a promissory note, as no time was stipulated for the payment of the installments: Moffatt v. Edwards, 1 Car. & M. 16 (41 E. C. L. R.).

Memo. Mr. Sibree has this day deposited with me 500l. on the sale of 10,3007. 37. per cent. Spanish, to be returned on demand." Held not to be a promissory note: Sibree v. Tripp, 15 M. & W. 23.

"Borrowed of Mr. J. White the sum of 2001. to account for on behalf of the Alliance Club at two months' notice if required," was held not to be a note: White v. North, 3 Exch. Rep. 689.

"Received 1501. of Messrs. B. to account for on demand," held not to be a "security for money:" Hopkins v. Abbott, L. R., xix. Eq. 222.

"Borrowed this day, of Mr. John Hyne, Stonehouse, the sum of 1007. for one or two months; check 1007. on the Naval Bank," was held to be a simple acknowledgment, and not a note or agreement: Hyne v. Dewdney, 21 L. J., Q. B. 278.

The following instrument was held to be a promissory note: "John Mason, 14th Feb. 1836, borrowed of Mary Ann Mason, his sister, the sum of 147. in cash, a loan, in promise of payment of which I am truly thankful for:" Ellis v. Mason, 7 Dowl. P. C. 598.

A letter in this form is a promissory note: "Gentlemen, I have received the imperfect books, which, together with the costs overpaid on the settlement of your account, amounts to 807. 78., which sum I will pay you within two years from this date. I am, gentlemen, your obedient servant, Thos. Williams." Wheatley v. Williams, 1 M. & W. 533.

A promise to pay or cause to be paid is a good note: Dixon v. Nuttal, 6 C. & P. 320 (25 E. C. L. R.); 1 C., M. & R. 307.

(r) 2 Atkyns 32; Allen v. Mawson, 4 Camp. 115; Bayley 5 Ed. 5.

in that sense in which the party making it apprehended that the other party understood it.

If there be no words amounting to a promise, the instru[*12] *ment is merely evidence of a debt, and may be received as such between the original parties. (8) Such is the common memo

randum I O U.(t)

A promissory note is not the less a note because it contains a recital that the maker has deposited title deeds with the payee as a collateral security (u)', or because it refers to an agreement where it does not appear that the agreement qualifies the note.(v) But an agreement to give further security in the future would invalidate the instrument as a promissory note.(x)

(s) Wayman v. Bend, 1 Camp. 175.

(t) Israel v. Israel, 1 Camp. 499; Fisher v. Leslie, 1 Esp. 426; Childers v. Boulnois, D. & R. N. P. 8. But see Guy v. Harris, Chit. 526, where Lord Eldon held such ån instrument to be a promissory note. But it clearly is not such at this day. See Tomkins v. Ashby, 6 B. & C. 541 (13 E. C. L. R.); 9 D. & R. 343; 1 M. & M. 32, s. c. See further on this subject chap. iv. on an I O U. (u) Wise v. Charlton, 4 A. & E. 786 (31 E. C. L. R.); 6 N. & M. 364 (36 E. C. L. R.); 2 H. & W. 49, s. c. ; Fancourt v. Thorne, 9 Q. B. 312 (58 E. C. L. R.). See, however, Storm v. Stirling, 3 E. & B. 841 (77 E. C. L. R.). [But such a note will generally require a mortgage stamp (as well? See 33 & 34 Vict. c. 97, s. 8, pt. 2), which might, however, be impressed on the note after it was made.] See further chap. xxiii. on INTEREST.

(v) Jury v. Baker, 28 L. J., Q. B. 255; E. B. & E. 459 (96 E. C. L. R.),

A note payable to order "with interest, waiving the right of appeal and all valuation appraisement, stay, and exemption laws," is negotiable: Zimmerman v. Anderson, 17 P. F. Smith 81. A clause that in addition to the sum, the maker, if not paid when due, shall pay attorney's and collection fees, does not impair the negotiability of a note: Sperry v. Horr, 32 Iowa 184; Dietrich v. Baylie, 23 Louis. Ann. 767; Nickerson v. Sheldon, 33 Ill. 372; contra, Woods v. North, 3 Norris 407. The fact that a promissory note contains a statement that it is given" for a patent right" does not take away from the instrument its negotiable character, according to the law merchant; neither does such statement open up to the maker every defence which he might have had if the note had remained in the hands of the payee: Hereth v. Meyer, 33 Indiana 511. A memorandum in writing signed by the second indorser is admissible to show that the agreement on which the indorsement was made was a guaranty: Eibbert v. Finkbeiner, 18 P. F. Smith 243.

A CHECK on a banker is, in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer (or order) on demand. (a) A check is consequently subject, in general, to the rules which regulate the rights and liabilities of parties to bills of exchange. Checks on bankers, however, have of late years come into use so frequent, as commonly to supersede in payments of any considerable amount not only gold and silver coin, but *bank notes themselves. With their universal use have grown up

[*14]

(a) Keene v. Beard, 8 C. B. N. S. 372 (98 E. C. L. R.). The 16 & 17 Vict. c. 59, introduced drafts on a banker, payable to order on demand, exempting the banker from liability if the original or any subsequent indorsement be forged: sect. 19. See post, p. 27.

1A check drawn upon a banker is not of itself an appropriation, unless it plainly appears that the fund claimed was the one designated out of which payment was to be made: Loyd v. McCaffrey, 10 Wright 410. See Stewart v. Smith, 17 Ohio St. 82; Anderton v. Shoup, Ibid. 125. The practical effect of certifying a check "good," is the same whether the drawer is actually charged on the books or not; as in either case that amount of his funds is withdrawn from his control until the payment of the check is refused: Brown v. Leckie, 43 Illinois 497.

certain usages peculiar to checks, which usages are now engrafted on the commercial law of the country. Moreover, the legislature

1 A bank check is substantially the same as an inland bill of exchange; it passes by delivery, when payable to bearer, and the rules, as to presentment, diligence of the holder, etc., which are applicable to the one, are generally applicable to the other: Woods v. Schrader, 4 Har. & J. 276; Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, Ibid. 259; Merchants' Bank v. Spicer, 6 Wend. 445; Murray v. Judah, 6 Cow. 484; Glenn v. Noble, 1 Blackf. 104; Smith v. James, 20 Wend. 192; Bowen v. Newell, 4 Selden 190; Barnet v. Smith, 10 Foster 256.

It is said by Judge Cowen, in Hooker v. Anderson, 21 Wend. 372, that a check is a bill of exchange payable on demand; and he refers to Brown v. Lush, 4 Yerger 216, in which a draft payable at a certain day after date was held not to be a check. This case is said to have been determined on the authority of a passage in Chitty on Bills (7th Am. Ed. 322, 10th Am. Ed. 512): "Checks are not due before payment is demanded, in which respect they differ from bills of exchange and promissory notes payable on a particular day." The passage by no means warrants the inference; but if it did, it would find no support in the authority Chitty cites. Judge Story entirely repudiates such a distinction. In the matter of Brown, 2 Story Rep. 502, he says: "A check is not less a check because it is post-dated, and thereby becomes, in effect, payable at a future and different time from that in which it is drawn or issued. This is sufficiently apparent from the case of Allen v. Reeves, 1 East Rep. 435. That it may be declared upon as a bill of exchange is no proof that it may not also be declared upon as a check. In many cases they are identical in their legal results; but by no means in all. Mr. Chitty very properly says that a check nearly resembles a bill of exchange; but (he adds) it is uniformly made payable to bearer, and should be drawn upon a banker or a person acting as such: Chitty on Bills, 10th Am. Ed. p. 511. I agree that it nearly resembles a bill of exchange; but nullum simile est idem. It is commonly although not always made payable to the bearer; but I conceive it to be still a check, if drawn on a bank or banker, although payable to a particular party only by name, or to him or his order. It is usually, also, made payable on demand; although I am not aware that this is an essential requisite. The distinguishing characteristics of checks, as contradistinguished from bills of exchange, are (as it seems to me) that they are always drawn on a bank or banker; that they are payable immediately on presentment without the allowance of any days of grace; and that they are never presentable for mere acceptance, but only for payment." Although checks are not presentable for acceptance before they are payable, yet they are sometimes presented for acceptance, or what amounts to acceptance. They are marked "good" by the bank officer, and charged to the account of the drawer as paid. Chancellor Kent (3 Kent's Com. 104, n. 7th Ed.) questions Judge Cowen's doctrine in the same case, that a check is, to all intents and purposes, but a bill of exchange. He says, "A check differs from a bill of exchange in several particulars. It has no days of grace, and requires no acceptance distinct from