the court should be of opinion that the instrument in question was not a bill.

Byles, Serjt., now moved accordingly.-This is not an order to pay a sum of money. It is no more than a direction by the manager of the corporation to the cashier to open a cash credit to the extent of 5001. with the persons mentioned in the document. [WILDE, C. J.What is the effect of that? Does it not mean, "pay them that amount?"] That would depend upon the other side of the account. [WILDE, C. J.-This was the only transaction between the parties.] Supposing it does amount to an order to pay,-how much is to be paid? That must depend upon whether or not the *payees were debtors to the [*572 company at the maturity of the bill. If they were debtors, it would amount to an order to pay them the balance. [CRESSWELL, J.— We cannot take into consideration any counter claim in construing this instrument.] This is, in truth, a mere order or direction from a principal to an agent. In Russell v. Powell, 14 M. & W. 418,† J. M., by indenture, assigned to the plaintiff a ninth part of his share in the residue of the estate of T. H. deceased. By an order of the 29th of July, 1842, made in a suit in Chancery, of Powell v. Norwood, the ViceChancellor ordered the defendants in that suit to retain 2501., being part of the produce of J. M.'s share of the residuary estate of T. H., to be paid to such person as the now defendant and J. M. should jointly direct. It was afterwards agreed between the parties, that 50l., to be considered as part of the sum of 2501., should be paid by the defendant to the solicitors for J. M. and the plaintiff. An action having been brought to recover this sum of 501., the plaintiff tendered in evidence the following document: To the executors of T. H., deceased. Powell v. Norwood. Gentlemen,-We do hereby authorize and require you to pay to Mr. George Powell, or his order, the sum of 250l., being the amount directed by the order of the 29th of July last to be paid to our order. We are, &c., J. M. December 16th, 1842." This document was signed by J. M. only, and was unstamped. It was held (ROLFE, B., dissentiente), that it was not a bill of exchange, and that it was admissible in evidence without a stamp. [CRESSWELL, J.-Who ever heard of a negotiable right to be credited in a book? WILDE, C. J.-Suppose this instrument had been accepted by the cashier, what would have been the consequence?] He would not have been liable to be called upon to pay it. *This is not unlike the case of Jenny v. Herle, 1 Stra. 591, where it was held that a bill drawn payable out of a [*573 particular fund is not a bill of exchange. At the utmost, this is an order to pay out of the moneys of the corporation.

WILDE, C. J.-I think this instrument is a bill of exchange. There is nothing ambiguous in its terms; nothing to be inferred but that the sum therein mentioned is to be paid. As I understand the words "credit in cash," this is an order by one person on another, to hold to

the use, or at the command, of a third party, a certain sum. That means 66 pay the money to him." I see no ground for a rule.

CRESSWELL, J.-Credit in cash" clearly means "pay over the money." The case of Russell v. Powell differs essentially from this. There, a very special agreement was entered into: but the judgment of ROLFE, B., shows pretty strong reasons for construing the instrument to be a bill of exchange.

WILLIAMS, J.-I am of the same opinion. "Credit in cash" is equivalent to "pay."

TALFOURD, J., concurred.

Rule refused.

*574]

*ALLEN v. THE SEA, FIRE, AND LIFE ASSURANCE COMPANY. April 18.

An instrument issued by a company, completely registered pursuant to the 7 & 8 Vict. c. 110, in this form,-"Sea, Fire, Life Assurance Company. To the cashier. Thirty days after date, credit Mrs. A., or order, with the sum of 3117. 9s. 6d., claims per 'Susan King,' in cash, on account of this corporation,"-and signed by two of the directors of the company :-Held, to be a promissory note, and binding on the company, notwithstanding it might not have been drawn strictly pursuant to the provisions of the deed of settlement, so as to be binding upon the shareholders.

ASSUMPSIT. The first two counts were upon a policy of assurance,— the defendants being described in the first count to be a joint-stock company completely registered, by the name of The Sea, Fire, Life Assurance Society, and to have obtained a certificate of complete registration conformably to the statute 7 & 8 Vict. c. 110, intituled “An act for the registration, incorporation, and regulation of joint-stock companies.'

The third count stated that the defendants theretofore, to wit, on the 28th of October, 1849, made their promissory note in writing, and delivered the same to the plaintiff, and thereby promised to pay to the plaintiff, in the said note described as Mrs. Ann Allen, or order, the sum of 311l. 98. 6d., thirty days after the date thereof, and that the note was unpaid, &c.

The defendants traversed the making of the note mentioned in the third count.

At the trial, before WILDE, C. J., at the last assizes at Maidstone, the plaintiff put in an instrument in the following form, bearing an 88. 6d. stamp :

"689,617. £311 98. 6d.

"To the cashier.

"Marine Department.

"Sea, Fire, Life Assurance Society. "31, Cornhill, October 20th, 1849.

Ninety days after date, credit Mrs. Ann Allen, or order, with the

sum of three hundred and eleven pounds, *nine shillings, and sixpence, claims per Susan King,' in cash, on account of this corporation.

"Entered, F. F. A., Accountant."

"A. DAVIS,

"W. OGILVIE,

}

[*575

Directors."

On the part of the defendants, it was submitted that this was not a promissory note at all, but a mere order for the payment of money; and that, if a promissory note, it was not drawn with the formalities required by the statute 7 & 8 Vict. c. 110, s. 45.(a)

*Under the direction of his lordship, a verdict was found for [*576 the defendants upon all the issues except the third, which was found for the plaintiff; and leave was reserved to the defendants 10 move to enter the verdict for them on the third issue also, if the court should think either of the objections well founded.

Shee, Serjt., now moved accordingly.—1. The instrument produced at the trial was not a promissory note: it was not a note in terms necessarily for the payment of money. [WILDE, C. J.—We held, the other day, in Ellison v. Collingridge, antè, p. 570, that "credit in cash," without the aid of extrinsic circumstances, meant "pay."] This is quite consistent with satisfaction by set-off. [WILDE, C. J.-So is a check.] But then it does not appear upon the face of the instrument. [WILDE, C. J.-There is no mutuality between the person to whom the order is addressed and the holder: it is a direction by the employers to their clerk to pay the money.] This is more like a bill of exchange than a

(a) Which enacts,—“With regard to bills of exchange and promissory notes made, accepted, or endorsed on the behalf or account of any such company, so far as relates to the mode of making, accepting, or endorsing the same, and to the liability of any such company thereon,that, if the directors of the company be authorized by deed of settlement or by-law to issue or accept bills of exchange or promissory notes, then every such bill of exchange or promissory note shall be made or accepted (as the case may be) by and in the name of two of the directors of the company on whose behalf or account the same may be so made or accepted, and shall be by such directors expressed to be made or accepted by them on behalf of such company; and that every such bill of exchange and promissory note so made or accepted as aforesaid shall be countersigned by the secretary or other appointed officer of the company in whose behalf the same is expressed to be made or accepted; and that every bill of exchange so made as aforesaid, or received, by or on behalf of the company, may be endorsed in the name of the company by any officer authorized by deed of settlement or by-law in that behalf; and that every such bill of exchange or promissory note so made, accepted, or endorsed as aforesaid, shall, immediately after the making, accepting, or endorsing of the same, be reported to the proper officer of the company on whose behalf the same shall have been made, accepted, or endorsed, and such lastmentioned officer shall enter the same in proper books to be kept for that purpose; and that, if any such bill of exchange or promissory note be not so reported and entered, then the officer by whose default such bill or note shall not be so reported or entered, shall be liable to repay to the company the amount which the company shall pay, or be liable to pay, in respect of such bill or note: Provided always that nothing herein contained shall be deemed to make any such secretary or officer personally liable upon any such bill of exchange or promissory note, nor be deemed to make any such directors personally liable thereon, except as shareholders of the company; and that every such company on whose behalf or account any bill of exchange or promissory note shall be made, accepted, or endorsed, in manner and form aforesaid, shall and may sue and be sued thereon as fully and effectually, and in the same manner, as in the cane of any contract made and entered into under their common seal."

promissory note. It is addressed to a person who is not a member of the corporation,-to one who would have been personally liable upon it if he had accepted it. [CRESSWELL, J.-What more is necessary to make it a promissory note? WILDE, C. J.-Is not this like a party drawing upon himself? It has been held that an instrument purposely made ambiguous, may be declared on as a promissory note: Allan v. Mawson, 4 Campb. 115, Edis v. Bury, 6 B. & C. 433 (E. C. L. R. vol. 13), 9 D. & R. 492 (E. C. L. R. vol. 22), 2 Car. & P. 559 (E. C. L. R. vol. 12), and see Brown v. De Winton, 6 M. Gr. & S. 336 (E. C. L. R. vol. 60), 6 D. & L. 62.]

2. Assuming that this was a promissory note,—it is not drawn *577] in conformity with the company's deed of settlement, under which alone it could be drawn. The 23d clause provides that there shall be not less than three or more than ten, directors of the company. The 44th authorizes the directors to make, accept, and endorse bills and notes, in the whole not exceeding 100,000l.: if they exceed that sum, the shareholders are not liable. [CRESSWELL, J.-Are the shareholders charged here?] They will be, when execution comes to be issued. [CRESSWELL, J.-It might afford an answer to a motion for leave to issue execution against a shareholder. The instrument is binding upon the company, though it may not be upon a shareholder, except to the extent of the value of his shares.] Then, the deed contains no clause empowering two directors to draw or accept. [CRESSWELL, J.-The 45th section of the 7 & 8 Vict. c. 110, gives authority to two directors to draw: the deed was made after the passing of that act, and this is one of the very things contemplated by it.] The note should have been countersigned by the secretary or other appointed officer of the company. [WILDE, C. J.-This is countersigned by the accountant.] There was no evidence that he was the appointed officer of the company.

WILDE, C. J.-I think there should be no rule in this case. The first objection is, that the instrument declared on in the third count is not a promissory note. What is necessary to constitute a promissory note? These parties issue this instrument, importing that the company promise to pay. The note is addressed by the drawers to their own clerk. My Brother Shee treats the cashier as a drawer. But at the trial it was insisted for the plaintiff, that the instrument was precisely what we think it is. The company indicate that they mean to pay, by a direction to their officer to pay,-" credit *in cash," meaning, *578] as we held in the former case, "pay ;" and they point out to whom payment is to be made. It appears to me that the instrument contains all that is essential to constitute a promissory note. It is then said, that assuming it to be a promissory note, it is not made in conformity with the deed of settlement. This note, however, is issued by the company; and the action is brought against them. The restrictions in the deed

cannot be prayed in aid in an action wherein the shareholders do not appear to be charged. What may be its operation as to them remains. to be seen. Next it is said that the note does not purport to be signed by all the directors: but that objection is answered by the authority given by the deed, and by the 45th section of the statute, which provides, that, "if the directors of the company be authorized by deed of settlement or by-law to issue or except bills of exchange or promissory notes, then every such bill of exchange or promissory note shall be made or accepted (as the case may be) by and in the name of two of the directors of the company on whose behalf or account the same may be so made or accepted, and shall be by such directors expressed to be made or accepted by them on behalf of such company." There is no stipulation in the deed which is inconsistent with that. This note, therefore, is properly signed by two directors. It is next objected that the note is not countersigned by the secretary or other officer appointed by the company. How are parties to know who is an officer appointed by the company? By "countersigned," I understand that the instrument must appear to have passed under the signature of some appointed officer. Here, the accountant has authenticated this instrument by his signature. I think there is no foundation for either of the objections The rest of the court concurring, Rule refused.

*BEAVAN v. COX and Another. May 6.

[*579

Upon error coram robis to reverse an outlawry, a verdict having been found for the plaintiff in error upon a traverse of the assignment of errors, and the time for moving for a new trial having passed, the plaintiff is entitled to a rule absolute to reverse the outlawry, upon production of the record and postea.

JUDGMENT in outlawry having been recovered against the plaintiff at the suit of the defendants, the former brought a writ of error coram vobis to reverse the outlawry, assigning for error, that he, the plaintiff, was, "before and at the time of awarding and issuing of the writ of exigi facias upon which the said judgment of outlawry was pronounced, and thence continually afterwards until the time of pronouncing the said judgment of outlawry, and afterwards, was in parts beyond the seas.” Prideaux, upon an affidavit stating the above facts, and also stating that the defendants by their plea traversed the said assignment of error, that the cause was tried on the 29th of April last, when a verdict was found for the plaintiff in error, and that the habeas corpora in the cause was returnable on the 27th of April last, and that no rule for a new trial had been granted, and upon production of the cord and postea, -moved to reverse the outlawry. He stated that this course had been