[*91]

*But where the whole note was printed (except the names, dates, and sum), and a place of payment was also printed at the bottom of the note, Lord Ellenborough held that a special presentment at this particular place was necessary.(b) If the drawer of a bill makes it payable at his own house, that circumstance is evidence of its being an accommodation bill. (c)

The 7 Geo. 4, c. 6, s. 10, enacts that every promissory note under 201., payable to bearer on demand, must be made payable at the place where issued, but may be made payable at other places also.

Bills or notes drawn by co-partnerships or corporations of more than six persons must, by 7 Geo. 4, c. 46, specify the place of payment, and that place must not be in London or within sixty-five miles thereof, unless in case of a bill for 50l. and upwards, drawn payable at some period after date or sight. (d) But this restriction, as to making the bills payable in London, is now removed by 3 & 4 Will. 4, c. 83, s. 2. And the restriction is further relaxed by 7 &

8 Vict. c. 32, s. 26.

Notes of the branches of the Bank of England are payable at the bank in London; but none of their notes are payable at a branch bank, unless specially made payable at such branch. (e)

The direction to place to account is unnecessary.(ƒ)

A bill is sometimes directed to be paid "as per advice;" sometimes without further advice;" sometimes "with or without further advice;" and sometimes, and more commonly, without any of these words. In the first case it is said the drawee is not justified in paying without further advice.(g)

liams v. Waring, 10 B. & C. 2 (21 E. C. L. R.); 5 M. & R. 9, s. c. But in Hardy v. Woodroffe, 2 Stark. 319 (3 E. C. L. R.), and in Sproule v. Legg, 3 Stark. 156, Lord Tenterden held that the note might be described as made payable at a place mentioned in the memorandum only.

(b) Trecothick v. Edwin, 1 Stark. 468 (2 E. C. L. R.).

(c) Sharp v. Bailey, 8 B. & C. 44 (15 E. C. L. R.); 4 M. & R. 4, s. c.
(d) 7 Geo. 4, c. 46, s. 1.

(e) 3 & 4 Will. 4, c. 98, s. 6, which they must now be if issued there; see p. 72.

(f) Laing v. Barclay, 1 B. & C. 398 (8 E. C. L. R.); 2 D. & R. 530, s. c. (g) Chitty 162, 9th ed.

OF AMBIGUOUS, CONDITIONAL, (a) AND OTHERWISE IRREGULAR IN

A NOTE cannot of course be made by a man to himself without more. Neither can it be made to himself and another man.(6)

But a note made payable to the maker's order becomes, in legal effect, when indorsed in blank, a note payable to bearer; (c) and when specially indorsed, a note payable to the indorsee's order.(d)'

If an instrument be made in terms so ambiguous that it is doubtful whether it be a bill of exchange or a promissory note, the holder

(a) As to the contracting words in promissory notes, see chapter ii.

(b) See Moffatt v. Van Millingen, 2 B. & P. 124, n.; Mainwaring v. Newman, Ibid. 120; and see Teague v. Hubbard, 8 B. & C. 345 (15 E. C. L. R.). It was formerly a doubt whether a note promising to pay to the maker's order, or to the maker or order, be a note within the statute. Such a note was sued on in Richards v. Macey, 14 M. & W. 484. It should on principle seem, when indorsed by the maker in blank, to be in legal effect a note payable to bearer. So decided by the Court of C. P. since these observations were written: Browne v. De Winton, 17 L. J., C. P. 281; 6 C. B. 336 (60 E. C. L. R.), s. c.; see ante, chapter iv. A bill of exchange drawn and accepted by the same parties is in strictness rather a promissory note, though capable of being treated as a bill: Williams v. Ayers, L. R., 3 Ap. Ca. 133.

(c) Browne v. De Winton, 17 L. J., C. P. 280; 6 C. B. 336 (60 E. C. L. R.),

S. C.

(d) Gay v. Lander, 17 L. J., C. P. 287; 6 C. B. 336 (60 E. C. L. R.), s. c.

A note made payable to the maker's own order cannot pass by mere delivery, but must be indorsed by the maker: Smalley v. Wight, 44 Maine 442. Contra, Central Bank v. Lang, 1 Bosworth 202.

may treat it as either, at his election.(e) *Thus, where for goods sold and delivered the defendant gave the plaintiff an instrument in the following form:

[*93]

£44: 118. 5d.

London, 5th August, 1833.

Three months after date I promise to pay Mr. John Bury, or order, forty-four pounds eleven shillings and five pence, value received.

J. B. GRUTHEROT,

35 Montague Place,
Bedford Place.

JOHN BURY.

and Grutherot's name was written across the instrument as an acceptance, and Bury's name on the back as an indorsement, it was held that the plaintiff might treat the defendant Bury either as a drawer of a bill or maker of a note, and therefore was not bound to give him notice of dishonor.(f)

So where an instrument was in the following form:

21st October, 1804. Two months after date pay to the order of John Jenkins, £78: 118., value received.

At Messrs. JOHN MORSON & Co.

THOMAS STEPHENS.

Lord Ellenborough held that it was properly a bill of exchange, but that perhaps it might have been treated as a promissory note, at the option of the holder.(g)1

(e) Peto v. Reynolds, 9 Exch. 410; Armfield v. Allport, 27 L. J., Exch. 42; Fielder v. Marshall, 30 L. J., C. P. 158 ; 9 C. B. (N. S.) 606 (98 E. C. L. R.), s. c.; and a court of law, in furtherance of justice and the intentions of the parties, will be astute to put such a construction upon it, ut res magis valeat. But still, if it be a mere inchoate instrument, it is neither a bill of exchange nor a promissory note. See M'Call v. Taylor, 34 L. J. 365, and the preceding chapter.

(f) Edis v. Bury, 6 B. & C. 433 (13 E. C. L. R.) ; 9 D. & R. 492; see Edwards v. Dick, 4 B. & Ald. 212 (6 E. C. L. R.); Block v. Bell, 1 M. & Rob. 149; see Dickenson v. Teague, 4 Tyrwh. 450; 1 C., M. & R. 241, s. c. ; Lloyd v. Oliver, 18 Q. B. 471 (83 E. C. L. R.).

(g) Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp. 115; Gray v. Milner, 8 Taunt. 739 (4 E. C. L. R.); 3 B. Moore 90, s. c.; Rex v. Hunter, R. & R. C. C. 511; Armfield v. Allport, 27 L. J., Exch. 42.

1 An indorsement on a bond, ordering the contents to be paid to order for

And it must be for money in specie; therefore, a promise to pay in three good East India bonds, (8) or in cash, or Bank of England notes,(t) is not a promissory note.1

(s) Bull. N. P. 272.

(t) Bayley 11, 6th ed.; Ex parte Imeon, 2 Rose 225; but see 3 & 4 Will. 4, c. 98, s. 6; and Byles on Bills, 6th American edition, p. 146.

1

A note payable in current funds or New York funds is not negotiable: Hasbrook v. Palmer, 2 McLean 10; Kirkpatrick v. McCollough, 3 Humph. 171; Collins v. Lincoln, 11 Verm. 268; Thompson v. Slown, 23 Wend. 71; Whiteman v. Childress, 6 Humph. 303; Fry v. Rousseau, 3 McLean, 106; see Swetland v. Creigh, 15 Ohio 118; Besancon v. Shirley, 9 Smedes & Marsh. 457; Cotkrill v. Kirkpatrick, 9 Missouri 697; White v. Richmond, 16 Ohio 5; Wilburn v. Greer, 1 English 255; Ogden v. Slade, 1 Texas 13; Fleming v. Nall, 1 Texas 246; Chevalier v. Buford, Ibid. 503. See ante, p. 5, n. (1). A bill payable in "currency" is not a bill of exchange: Faswell v. Kennett, 7 Miss. 595. So a draft payable in "Arkansas money:" Hawkins v. Watkins, 5 Pike 481. So "current rate of exchange to be added:" Philadelphia Bank v. Newkirk, 2 Miles 442. See Little v. Phoenix Bank, 7 Hill 359; Bank of Hamburg v. Johnson, 3 Rich. 42. A bill payable in “funds current in the city of New York" was held to be payable in gold or silver, or their equivalent, and was therefore good as a bill of exchange: Lacy v. Holbrook, 4 Ala. 88; Carter v. Penn, Ibid. 140. A note for a sum certain, payable in cotton at a fixed price, is a promissory note, and may be declared on as such: Rankin v. Sanders, 6 How. Miss. 52.

It will be seen upon an examination of the foregoing cases that many of them are not so irreconcilable as at first sight they may appear. Many of them construe the words current money, New York funds, Arkansas money, used in bills and notes, to mean lawful gold or silver coin of the United States. In Missouri, current funds is held to mean either coin or notes of the Missouri Bank-a bank authorized by the state-and in Texas the terms "bank notes," "good bank notes," or "current bank notes," as employed by them, are held to import in their ordinary acceptation such bank bills only as are redeemable in gold or silver, or such as are equivalent thereto. A contract for the payment of a certain sum in bank notes or other paper currency may or may not be equivalent to that sum in specie. The extent of the obligation depends on the meaning which usage affixes to the terms at the time the contract was made. Usage gives force and effect to language; and as terms are generally understood in the ordinary transactions of life, so should they be construed by courts of justice: 1 Texas 246.

As to bills or notes payable in goods or merchandise, see Jerome v. Whitney, 7 Johns. 321; Thomas v. Roosa, Ibid. 461; Pray v. Pickett, 1 Nott & McCord 254; Rhodes v. Lindley, 1 Hamm. Ch. Rep. 51; Atkinson v. Manks, 1 Cowen 691; Lawrence v. Doherty, 5 Yerger 435; Burns v. Graham, 4 Cowen 452; Wyman v. Winslow, 2 Fairf. 398; Bailey v. Symonds, 6 New Hamp. 159; Smith v. Loomis, 7 Conn. 110. See ante, p. 5, n. (1); Bradley v. Zell,

*And the sum must be certain, not susceptible of contin- [*95] gent or indefinite additions. Therefore, where an instrument promised to pay J. S. the sum of 651., with lawful interest for the same, and all other sums which should be due to him, Lord Ellenborough held that it was not a promissory note, even for the sixty-five pounds.(u) Nor must the sum payable be subject to indefinite or contingent deductions. Thus, where the defendant promised to pay 4007. to the representatives of J. S., first deducting thereout any interest or money J. S. might owe to the defendant, it was held no promissory note.(x)

And for the payment of money. Where the instrument contains a stipulation that the money or a portion of it shall be paid by a set-off, it is no promissory note.(y)

The order or promise must be to pay absolutely and at all events; 1

(u) Smith v. Nightingale, 2 Stark. 375 (3 E. C. L. R.); Bolton v. Dugdale, 4 B. & Ad. 619 (24 E. C. L. R.); 1 N. & M. 412, s. c.

(x) Smith v. Nightingale, 2 Stark. 375 (3 E. C. L. R.); Barlow v. Broadhurst, 4 B. Moore 471; and see Leeds v. Lancashire, 2 Camp. 205; Bolton v. Dugdale, 4 B. & Ad. 619 (24 E. C. L. R.); 1 N. & M. 412, s. c. ; 2 Bligh 79; Ayrey v. Fearnsides, 4 M. & W. 168.

(y) Davies v. Wilkinson, 10 A. & E. 98 (37 E. C. L. R.); 2 P. & D. 256, s. c.

4 Biss. 473; Harris Co. v. Marsh, 49 Iowa 11; Ferguson v. Hogan, 25 Minn.

135.

As to bills or notes payable in bank notes, see Keith v. Jones, 9 Johns. 120; Judah v. Harris, 19 Ibid. 144; Leiber v. Goodrich, 5 Cowen 136; Lange

t.

. Kohne, 1 McCord 115; Jones v. Fales, 4 Mass. 245; McCormick v. Trotter, 10 Serg. & Rawle 94; Digberty v. Dumell, 5 Yerger 451; Gray v. Donahoe, 4 Watts 400; 3 Kent's Com. 76; Schnew v. Fay, 12 Kan. 134.

1 Bunker v. Atheam, 35 Maine 364; Hays v. Gwin, 19 Indiana 19. A promissory note, in terms payable to order, but containing a condition that it shall be given up to the maker as soon as the amount of it is received by the payee, is not negotiable: Hubbard v. Mosely, 11 Gray 170. A written promise to pay money, on the happening of a contingency, does not import a consideration sufficient to support the promise, but one must be averred and proved by the party seeking to recover upon such instrument: Conover v. Stillwell, 34 New Jersey (Law) 54. A promise to the maker's own order, "subject to the policy," and endorsed specially to the order of an insurance company, is not negotiable: American Exchange Bank v. Blanchard, 7 Allen 333. "Payable without defalcation or discount, provided said sum is not in the meantime collected from assets of Pemberton & Co.," the promise to pay is not conditional. The effect is simply to charge third persons with