II. CHAPTER to pay rent (k). 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 (1). For a contract ought to be expounded 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 instrument is merely evidence of a debt, and may be received as such between the original parties (m). Such is the common memorandum IOU (n). (k) Casborne v. Dutton, S. N. P. 401; Brooks v. Elkins, 2 M. & W. 74. But in Horne v. Redfearn, (4 Bing. N. C. 433; 6 Scott, 260), the following instrument was held not to be a promissory note: -"I have received the 207, 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 guarantie, 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 67., which is to be paid by instalments for rent. Signed, R. J. M." Held, not to be a promissory note, as no time was stipulated for the payment of the instalments. Moffatt v. Edwards, 1 Car. & M. 16. "Memo. Mr. Sibree has this day deposited with me 5007. 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 2007. 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 150l. of Messrs. B. to account for on demand," held "Borrowed, this day, of Mr. John Hyne, Stonehouse, the sum of 100l. for one or two months cheque 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 80l. 7s., 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; 1 C., M. & R. 307. (7) 2 Atkyns, 32; Allen v. Mawson, 4 Camp. 115; Bayley, 5 Ed. 5. (m) Waynam v. Bend, 1 Camp, 175. (n) Israel v. Israel, 1 Camp. 499; Fisher v. Leslie, 1 Esp. 426; Childers v. Boulnois, D. & R. N. II. A note, as we have seen, may be payable by instal- CHAPTER ments (o), and such a note was held to be within the statute 3 & 4 Anne, c. 9 (now repealed). Days of grace of notes payare allowed on each instalment (p). able by instal It is conceived that presentment and notice of dishonour ments. are required when each instalment falls due, in order to charge indorsers, but that laches as to one instalment in ordinary cases only discharges indorsers as to that one. And that a note payable by instalments cannot be indorsed for less than the entire sum due upon it (q). A note payable by instalments may contain a proviso that on failure of payment of any instalment, the whole debt is to become due (r). note. A promissory note is not the less a note because it con- Other matters tains a recital that the maker has deposited title deeds with contained in a the payee as a collateral security, or a pledge of collateral security with power to sell (s), or because it refers to an agreement, where it does not appear that the agreement qualifies the note (t). But an agreement in the instrument to give further security in future would invalidate it as a promissory note (u). A note which is, or on the face of it purports to be, both Inland and made and payable within the British Islands, is an inland foreign. note; any other is a foreign note (v). The maker of a note, like the acceptor of a bill of Contract of exchange, promises absolutely to pay according to its the maker. tenour (w); and when the note is in the hands of a holder P. 8. But see Guy v. Harris, Chit. 526, where Lord Eldon held such an instrument to be a promissory note. But it clearly is not such at this day. See Tomkins v. Ashby, 6 B. & C. 541; 9 D. & R. 343; 1 M. & M. 32. See further on this subject, Chap. IV. on an IO U. (0) Code, ss. 9 and 89. Orridge v. Sherborn, 11 M. & W. 374; 12 L. J., Ex. 313. (p) Ibid., supra; Code, ss. 14 and 89. (q) Code, s. 32 (2), is apparently to the same effect. (r) Code, ss. 9 (c) and 89. Carlon v. Kenealey, 12 M. & W. 139. (8) Wise v. Charlton, 4 A. & E. 786; 6 N. & M. 364; 2 H. & W. (1) Jury v. Baker, 28 L. J., MENTS. (r) Code, s. 83 (4). Where a foreign note is dishonoured here, so far as the law of this country is concerned, protest is not required. S. 89 (4). (w) Code, s. 88. If the note be in the body of it made payable at a particular place, neither maker CHAPTER in due course, is estopped from denying the existence of the payee and his then capacity to endorse. II. Time of presentment. When overdue. Summary of chief points of difference between a bill and a note. Though not necessary in general to charge the maker, due presentment for payment to the maker is necessary, in order to charge the indorser; and it must be made within a reasonable time after the indorsement, if the note be payable on demand (x). The rule as to overdue instruments is not so strict in the case of a note payable on demand, as in the case of bills of exchange and cheques; when a note payable on demand is negotiated, it is not considered overdue, so as to affect an innocent holder with defects of title, because it has not been presented within a reasonable time after its issue (y). Promissory notes often accompany other securities, such as mortgages, bills of sale, &c., as affording a more speedy remedy in case of default: they may be valid and binding though the instruments, which they accompany, be not so (2). If indorsed away, even though in breach of faith, there will be no defence against a holder in due course (a). The following seem therefore to be the chief points in which promissory notes differ from bills of exchange :— There are only two parties to a note-maker and payee, whereas there are three to a bill-drawer and acceptor and payee; hence, as the contract of the maker is the primary or absolute contract, like that of the acceptor, the rules regulating presentment for acceptance, acceptance, and acceptance and payment supra protest do not apply to notes (b). Notes are not made in sets, nor is protest nor indorser are liable, unless it (x) Code, ss. 86 and 87 (2) and a guarantee or continuing security. See post, Chapter on PRESENTMENT FOR PAYMENT. (y) Sect. 86 (3) contains an exemption in favour of notes payable on demand from the provisions in s. 36 (3) as to other negotiable instruments on demand. See post, Chapter on PRESENTMENT FOR PAYMENT. () Monetary Advance Co. v. Cates, 20 Q. B. D. 685; 57 L. J. 463. (a) Glasscock v. Balls, 24 Q. B. D. 13. As to the position of the parties in case of bankruptcy, sce Baines v. Wright, 16 Q. B. D. 330. (b) Sect. 89 (3). The maker is required in the case of a foreign note dishonoured CHAPTER here (c). They bear an ad valorem stamp in every case, and there are certain restrictions against bankers and others issuing notes payable on demand. Notes may be not only joint, but joint and several, and may, in addition, contain certain other matters, such as a pledge, with power to sell as a collateral security. And the strictness of the rule as to defects attaching to the title of the transferee of an overdue instrument is relaxed in the case of a promissory note payable on demand. in the code deemed to stand in the acceptor's shoes, and first indorser of a note in the same position as drawer of an accepted bill payable to drawer's order (and indorsed by him ?). Sect. 65 (1) impliedly excludes them by using the full title, bill of exchange, instead of merely bill as elsewhere. (c) S. 89 (3) and (4). II. 16 CHAPTER What instruments are cheques. A CHEQUE is a bill of exchange drawn on a banker, payable on demand; and is consequently subject in general to the rules which regulate the rights and liabilities of parties to bills of exchange (a). (a) Code, s. 73. Kcene v. Beard, 8 C. B. N. S. 372; Rickford v. Ridge, 2 Camp. 537. Cheques are generally though not necessarily inland bills, and even though drawn out of the United Kingdom, unless that appear on their face, are or certainly may be treated as inland, Code, s. 4 (2). Should that appear on their face they are still valid, Code, s. 72 (1), but are foreign bills (? if so for the Stamp Act, see Ex parte Boyse, 33 Ch. D. 612), and may require protesting in case of dishonour, Code, s. 51 (2), to pre |