CH. 20. Art. 3. 10. So a promise to deliver a horse, and pay money; for it must be all money on a true construction of the statute, and because if part of the payment could be in such an article as a horse, it would make the note's currency very incon- 2 Stra. 1271, venient. Martin v. Cunn. 114. § 11. So a promise to pay A £50, if B do not pay it in Chaimtry. six weeks; for it is uncertain who is to pay. A bill of ex- Imp. 392.change, not to order, nor like words, is not so endorsible as Chitty 261. the endorsee can sue. 1 Dallas 194. § 12. So to pay £10, if he do not render a prisoner by Kyd 36. such a day; for there is no certainty the money will be paid. Baldwin. 13. So to pay 10 days after the deft. shall marry; for it 2 Stra. 1151, is uncertain if he will ever marry; and so if the money Beardesly will ever become due. A promissory note is not negotiable at common law. 2 Ld. Raym. 775, 825; Salk. 129; 2 Ld. Raym. 757. § 14. So to pay on the death of A, provided he leave suf- 1 Burr. 325, ficient estate; for if he do not leave sufficient estate, the mon- Roberts v. ey will never become payable. Note not to order, is not negotiable. 2 Dallas 250. Peake. 15. So to pay B or order, £300, in good East India Bul. N. P. bonds; for these bonds are not money. So to pay when house is sold. 2 Bos. & P. 443. a 268, Moore v. Vanlute.- 9 Johns. R. 16. So a note payable in foreign bills, that is, bank bills 261. of certain country banks, that passed at about two per cent. 4 Mass. R. 245, Jones v. under par, is not negotiable; for it is not a cash note, or for Fales.money, within the meaning of the 3 & 4 of Anne, though 1 Bay. 66.— never enacted in Massachusetts, yet "in practice, the provis- 120. ions of the first section were early adopted." See Sanger v. Stimpson, a. 10. So a note to pay, provided a ship arrive at her port, free from capture and condemnation. 15 Mass. R. 387. 17. So to pay out of the deft's. from his reversion of £43, when sold. 1563; 3 Wils. 207. monies that should arise 5 T. R. 482, 2 Ld. Raym. 1361, Carlos v. Fancourt. Jenny v. 18. So a promise to pay Herle £50 on demand, out of mon- Stra. 591, ey in your hands, belonging to the owners of mines, being Hony part of the consideration for the manor of W. This is only Kyd 34. a bare appointment to pay money out of a particular fund, and cannot answer the necessities or purposes of trade and commerce; see 1 Bos. & P. 398. 19. So to pay out of W's money as soon as you shall re- 3 Wils. 207. ceive it. So an order to pay on the account of freight, when -2 W. Bl. accepted to pay on such a particular fund, is not understood 782-Stra. to be on the general credit of the acceptor, so that in all Dougl. 671, events he may be called upon to pay his acceptance. 1211. Pierson v. Сн. 20. 2 Mass. R. 20. A note to pay to the order of A, or to A or his order, is the same, and A may sue in both cases. 10 Mod. 286. 21. So a promissory note to bearer, payable in goods, is not a negotiable security, within the 12th section of the act of 424, Clark v. Feb. 28, 1795, respecting trustees; only the original promKing & al. trustees. 3 Mass. R. 556, Blake v. Sewall.Chitty 108. 1 W. Bl. 445. Chitty 65, 2 Burr. 1216; same case, I W. Bl. 295. isee can sue it. 22. A promissory note or bill of exchange, once paid, ceases to be negotiable, as where the note had been paid by the second endorser; but the person who makes the endorsement may be liable on his promise. If an endorser or draw er pay, he must sue a prior party, not one after the party pay ing. ART. 4. Notes &c. void by certain statutes. § 1. Certain statutes here, as in England, as the statutes against usury, against gaming, &c. make all usurious notes and contracts, and all gaming notes and contracts, absolutely void, in whosesoever hands they come. For particular cases, see Consideration, Usury, Gaming, &c. § 2. And where a note is made void by statute, as for usury &c., the consideration may, in every case, be enquired into, and the note is void even in the hands of an innocent endorsee, as against the maker, but the endorsee may sue the endorser. 2 Stra. 1155. ART. 5. A contract once negotiable is always so ;—by whom endorsible. 1. Any note, or bill, or order, to pay money to one or his order, is negotiable in its nature, and if endorsed to one, he has the entire property of it; and though in the en567-3 Wils. dorsement to him the words, " or order," are omitted, yet he 1, 5, Rawlinson v. Stone. may endorse it; for the endorsement, with such an omission, follows the nature of the original contract; and a blank endorsement may be filled up even at the trial. So a note, or bill, or order, may be endorsed by an executor or administrator, by the name of executor or administrator, but to pass the property only. -Stone v. 2 Stra. 260. -Kyd 68.- Connor v. Kyd 68.- Kyd 69, Ev ans v. Cramlington. 14 Mass. R. 279. $2. So if a note or bill be made or endorsed to a feme sole, and she marries, her husband may endorse it. For by the marriage he is entitled to all her personal estate; and he not only assigns the property of the note or bill, but he also, by a general endorsement, makes himself liable as endorser. 3. So the assignees of a bankrupt may endorse a bill or note, and to a married woman, clearly to pass the property, and they make themselves liable as endorsers, by a general endorsement. So as to Guardians &c., Ch. 85. 4. If a note or bill be payable to A, to the use of B, A must endorse it; for B has only an equitable interest in it; and A must sue it, though he will recover the monies due on it to B's use. One is not liable, who endorses between other parties. § 5. The endorsement of a part of the debt is bad, unless the residue be paid; for the drawer, or acceptor, or endorser, cannot be subjected to several actions on the same contract. Salk. 69; 1 Ld. Raym. 360. be en 6. So a bill or note, to two or more partners, may dorsed by one of them, if it concern their joint trade. So if the bill or note be drawn in favour of two persons, or either of them, though not partners, either may endorse it. So where a bill drawn by two, is made payable to them or their order, either may negotiate it, for by so drawing the bill they hold themselves out to the world as partners. In this case the writing was, "Mr. Abraham Vickery, two months after date, please to pay to us or our order, the sum of, &c. JOHN MAYDWELL. It was endorsed thus, "Jno. Maydwell." The Maydwells were father and son. The endorsement was by the son. They were admitted not to be partners. Deft. accepted the bill. Lord Mansfield non-suited the plt., because there was not an endorsement by both. But on consideration, the whole court was of opinion the endorsement, by one, was good, for "that the Maydwells by making the bill payable to our order,' had made themselves partners, as to this transaction." They being thus partners quoad hoc, it seems one could endorse it by signing his individual name. CH. 20. Art. 6. Kyd 71Carth 46512 Mod. 213. Kyd 68. Dougl. 630, 653, Carvich v. Vickery. If A, in one State, draws a bill on B, in another in the Un- See Ch. 50 a. ion, it is an inland bill, to be endorsed &c. accordingly. 1. 3 T. R. 757; 7. So it seems, if I own a bill, and get A to endorse and & 4 T. R. sell it on my account, an action lies against me as an endorser; 177, the case for what I do by him I do by myself. But it is to be under- of Finn & al. stood that A exceeds not his authority in his endorsement of v. Harrison. the bill. Where debt lies against the acceptor of a bill, and maker of a note, 2 Wheaton's R. 385. § 8. After a bill has become due, one promises to pay it according to the tenor of it, this is a valid promise, and an action lies presently. This was a bill drawn March 25, 1696, and payable in a month. May 26th, 1697, the deft. accepted it, and promised to pay according to its tenor and effect. Verdict for the plt., for this was a promise to pay on demand. ART. 6. The effect of an endorsement, and how it may be restricted. -5 Com D. 85.-3 T. R. 176. 12 Mod. 211, Pigot. Jackson v. 1. If the payee &c. give an order to receive a note, bill, 2 Burr. 1226, or order, to his use, he retains the property, and he may mod- in Edie v. East India ify the order as he pleases; but if he sell it, and transfer the Comp.-If an property by endorsement, it is doubtful if he can take away endorsee use its negotiability, an essential quality given to it by the maker, an endorsery to his agreement he is liable in damages, Chipman 85. ment contra CH. 20. so as by any form of endorsement to render it not negotiable in the hands of the assignee; for he buys it for a valuable consideration, so with all its qualities and advantages, one of which 2 Ld. Raym. is its negotiability. Endorsing the name merely, does not necessarily transfer the property. 871. Dougl. 637, § 2. But in a later case it has been adjudged that such a note or bill is capable of being restrained by a special endorsement on it, and the restriction is by consent of the parBank of Eng- ties, who it seems may modify the contract as suits them, beland.-1 Esp. tweem themselves, and every subsequent endorsee must take it subject to such restriction. And if after thus restrained, the drawer pay it on a forged general endorsement, he may recover back the money. 24. 2 Burr. 1005, Moses v. Macfarlan. 2 Johns. R. 50; special endorsement restored in court which had been erased. 15 Mass. R. 3. But the endorser may, or may not, be liable by special endorsement; for his endorsement being a new promise, he may modify it as he and the other party may agree. Hence November 7, 1758, one Chapman Jacobs gave four promissory notes, for three of each, to Moses, for value received. He endorsed them to Macfarlan, with a special agreement that Moses should not be liable as endorser. However, Macfarlan, the endorsee, compelled Moses, as endorser, to pay the notes in a court of conscience, in which he could not 436, sum in a avail himself of the special agreement. And Lord Mansfield note a penal- and the court held, that Moses, the special endorser, must recover the money back from Macfarlan, the endorsee, in an action for money had and received, by reason of the special agreement. This Moses could not have done, if he could not by law have made such a restrictive endorsement. ly 488. 12 Mod. 213, Hawkins v. Goodwin. 5 Mass. R. 225, Rice v. Stearns. See Blakely v. Grant, a. 10. So if only by parol, Chip man 85.Chitty 113, 114. 3 Mass. R. 77, Powers v. Lynch. Cunn. 91, 92. -12 Mod. 4. And if a bill be endorsed for a part of what is due, the endorsement is void; for if good, then the endorser would be liable to two actions. 5. In this case the promisee of a note endorsed it specially thus, "for value received I order the contents of this note to be paid to Merrick Rice at his own risk." And in an action on this note by the endorsee against the maker, it was held, that the endorser was a good witness to prove the execution of the note; for by such special endorsement he was not liable as endorser, though this endorsement transferred the property of the note with its negotiable quality to the endorsee. So an endorsement may be restricted to a particular person only, or to a certain use. 7 Cranch 159. 6. Held, that the endorser of a bill of exchange, drawn in a foreign country, and endorsed by one residing there, is only answerable according to the laws of that country. 7. A by parol may authorize B to endorse A's bill, and to endorse his name on it, and when done, it is the same as if 12 Mod. 192, 193, Clerk v. Pigot.-1 Salk. 130, 131.-Salk. 126, but 2 Johns. R. 300. A had done it himself. A bare endorsement does not change the property of the bill or note; for it may be filled up with a receipt or assignment. It is only by filling up the blank endorsement the property is passed. CH. 20. Art. 7. mer.--Dougl. ART. 7. The form and effect of the acceptance of bills. § 1. Stra. 648, The holder of a bill or order, must request the drawee to 1152, Lumv. accept it, and if he accept verbally or in writing, he is liable ley . Palto pay it, but he must accept an inland bill in writing to sub- 299, Notes. ject him to the damages and costs, though otherwise as to the Kyd 45.principal; for a parol acceptance was good at common law, and the 3 & 4 of Anne does not invalidate the common law acceptance, but only requires an acceptance in writing to charge the drawer with damages and costs. 5 East 514; 4 East 57; 1 East 98. - 12 Mod. 345. 3 Burr. 1663. lian v. Sho § 2. A parol acceptance is good, and binds the acceptor. 2 Wils. 9.An acceptance may be before a bill issues, or after it is due, Dougl. 284. and so to pay part in money, and part in goods; or to pay -Kyd 50.— when certain goods shall arrive. So a conditional acceptance, Stra. 1152.— as well as a parol one is good; for the acceptor may vary the 2 Wils. 9, Juterms, and accept on new terms, but then the holder may brook. consider this as no acceptance, or agree to it as he pleases. 3. Assumpsit on a bill, by the payee against the acceptor, 2 who accepted, "on account of the ship Thetis when in cash for her cargo," the plt. avers he was so in cash when the bill be- 2 Stra. 955 –– came payable. This acceptance was adjuged good, and judgment for the plt. and held, that a parol acceptance is good. Though a bill or note be not negotiable, the endorsee Chitty 95, 96. may sue the endorser; for endorsing is equivalent to drawing, and makes a new contract. ance. Stra. 817. -2 L. Raym. 1542. 4 Maule & Sel. 462. Hunt. Mason v. § 4. An agreement to accept may amount to an accept- Dougl. 299, See Pillans & Rose, ante, Ch. 1, a. 1, 2, 3, 8, &c., but this agreement is still an agreement only, and if it be con- 5 Com. D. ditional, one must take it subject to the conditions; and if not complied with the acceptance is void. 5. If a bill be drawn on two joint partners, and is accept ed by one of them for himself and partner, it binds both, if it concern their trade. But otherwise, if it concern the acceptor only. So an acceptance after the time of payment is elapsed is good, and amounts to a promise to pay the money. 80.-3 Mass. R. 1, 13.- Salk. 126, 129, Pinkney Jackson v. Pigot, 1 Ld. Raym. 574, and 364. v. Hall 127. Stra. 214. Kyd 48. 6. There may be a partial acceptance, or an acceptance for a part, or to pay at a later day, or for the honour of the 5 Com. D. 80. drawer. The acceptance by the drawee is a contract on his 2 Bl. Com. part grounded on an acknowledgment, that the drawer has 468.-Dougl. effects in his hands, or at least, credit sufficient to warrant the 247, Dingpayment. And nothing but the express declaration of the ster-Chitty holder will discharge the acceptor; nor is a consideration 158, 159. essential to the validity of an acceptance, (which is tried by the well v. Dun |