CHAPTER I. Where a bill or note may ope rate as a will or testamentary instrument. As a declaration of trust. checks, bills, promissory notes, and other securities for money, may be taken in execution. The money and bank notes are to be handed over by the sheriff to the execution creditor, and the sheriff, on receiving a sufficient indemnity, is to sue in his own name (k). Bills and notes may be taken under an extent. A bill, check or note, or an indorsement thereon, made before the late act, 1 Vict. c. 26, may be a testamentary instrument. A testator gave three checks, at different times, to a lady, and on the corresponding parts of the check-book were found entries by him to the effect that they were given by him to make provision for her in case of his death. The checks were held to be testamentary instruments, giving cumulative legacies (1). But parol evidence is inadmissible to show that an instrument was only to be payable in case of the testator's death (m). An indorsement on a note, as "I give this note to C. D.," may be testamentary (n). might have. A bill or promissory note may in some cases be a declaration of trust (0). (k) See Chap. XI. on TRANSFER. (1) Bartholomew v. Henley, 3 Phill. 317. (m) Woodbridge v. Spooner, 3 B. & Ald. 233; 1 Chit. R. 661, S. C. (n) Chaworth v. Beech, 4 Ves. 565. For the circumstances under which bills and notes will pass under a will, or as a donatio mortis causa, see Chap. XI. on TRANSFER. (0) Murray v. Glasse, 23 L. J., Ch. 126. A PROMISSORY note (a), or, as it is frequently called, a What it is. note of hand, is an absolute (b) promise in writing, signed but not sealed, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named or designated (c), or to his order, or to the bearer (d). The person who signs the note is called the maker. The instrument is not complete, and available until delivery by the maker (e). at common law, and what by At common law, no note of hand was transferable; and How considered before the stat. of 3 & 4 Anne, c. 9, it was the opinion of Lord Holt and the majority of the Judges, that no action statute. could be maintained, even by the payee, on a promissory note as an instrument, but that it was only evidence of a (a) As to notes in an irregular form, see post, Chap. VII. (b) As to conditional instruments, see post, Chap. VII. (c) See Storm v. Stirling, 3 E. & B. 842; Cowie v. Stirling, 6 E. (e) Chapman v. Cotterell, 34 CHAPTER Promissory notes made out of England. Form of a note. Note by a man to himself. debt (e). That statute, however, makes promissory notes assignable and indorsable, like bills of exchange, and enables the holder to bring his action on the note itself. Under the statute of Anne, foreign notes may be declared upon and indorsed. "They are," observes the Court of K. B., "within the words and the spirit of the Act; the "words are all notes.' The act was made for the advance"ment of trade, and ought, therefore, to receive a liberal "construction. It is for the advantage of commerce that "foreign, as well as inland bills, should be negotiable” (ƒ). It has been suggested to be a doubtful point, whether this statute makes English notes assignable abroad (g), but it is now decided that it does (h). No precise form of words is essential to the validity either of a bill of exchange, or of a promissory note (i). A note cannot be made by a man to himself without more. But if made to himself, or order, and indorsed in blank, it becomes a note payable to bearer (k); and if specially indorsed it becomes a note payable to the indorsee or order (1). A note by which the defendant and four other persons promised to pay 7501. "to our and each of our order," and indorsed by defendant alone, was held good (m). A note payable to the maker's order, and afterwards indorsed, should be declared on and stamped according to its legal effect (n). (e) Buller v. Cripps, 6 Mod. 29; Clerke v. Martin, 2 Ld. Raym. 757; Story v. Atkins, 2 Ld. Raym. 1427; 2 Stra. 719, S.C.; Brown v. Harraden, 4 T. R. 148, Trier v. Bridgman, 2 East, 359. (f) Milne v. Graham, 1 B. & C. 192; 2 D. & R. 294, S. C.; Houriet v. Morris, 3 Camp. 303; Bentley v. Northouse, 1 M. & M. 66. But it was at one time thought that the act did not extend to notes made abroad. Carr v. Shaw, H. T. 39 Geo. 3; Bay. 23. (g) De la Chaumette v. The Bank of England, 9 B.,& C. 208. (h) S. C., 2 B. & Ad. 385. As to the transfer abroad of notes made abroad, and English notes, see the Chapter on FOREIGN BILLS and FOREIGN LAW. (i) Chadwick v. Allan, Stra. 706; Peto v. Reynolds, 9 Exch. 410; Reynolds v. Peto, 11 Exch. 418. (k) Browne v. De Winton, 17 L. J., C. P. 281; 6 C. B. 336, S. C. (1) Gay v. Lander, 17 L. J., C. P. 286; 6 C. B. 336. See also Wood v. Mytton, 10 Q. B. 805, and Flight v. Maclean, 16 M. & W. 51. So in America it has been held that an instrument payable to the maker and indorsed by him is a promissory note. Maldow v. Caldwell, 7 Missouri, 563. And see 55 Geo. 3, c. 184, Sched. pt. I. CHAPTER II. Nor can there be a note by the maker to himself and another man (o). Nor a joint note by the maker and others to himself. But such a note, if joint and several, may be Note by a man to valid at the suit of the payee, as to the several contracts of his co-makers (p). himself and another. by instalments. A note may be made payable by instalments, and yet be of notes payable within the statute of 3 & 4 Anne, c. 9 (q). Days of grace are allowed on each instalment (r). It is conceived that presentment and notice of dishonour is required when each instalment falls due; but that laches as to one instalment in ordinary cases only discharges an indorser as to that one. And that a note payable by instalments cannot be indorsed over for less than the entire sum due upon it. A note payable by instalments is within the statute, although it contain a provision that, on failure of payment of one instalment, the whole debt is to become payable (s). notes. A note by two or more makers may be either joint only, Joint and several or joint and several. A note signed by more than one person and beginning, "We promise," &c., is a joint note only. A joint and several note usually expresses that the makers jointly and severally promise. But a note signed by more than one person, and beginning, "I promise," &c., is several as well as joint (t). So, a note beginning in the singular, "I promise," and signed by one partner for his co-partners, is the joint note of all (u), and has been held to be also the several note of the signing partner (v). 66 A joint and several note, though on one piece of paper, (0) See Moffatt v. Van Millingen, 2 B. & P. 124, n.; Mainwaring v. Newman, Ibid. 120. See Teague v. Hubbard, 8 B. & C. 345. But indorsement may remove the difficulty. Quere as to the effect of survivorship. (p) Beecham v. Smith, 27 L. J., Q. B. 257; E. B. & E. 442, S. C. (1) Orridge v. Sherborn, 11 M. & W. 374; 12 L. J., Exch. 313, S. C. Skinner, 2 Bailey, 88. So a bond (u) Doty v. Smith, 11 John- (v) Hall v. Smith, 1 B. & C. 407; 2 D. & R. 584; Lord Galway v. Mathew, 1 Camp. 403. But Hall v. Smith seems to be overruled in Ex parte Buckley, 14 M. & W. 475; 15 L. J., Bkcy. 3, S. C. See also Maclae v. Sutherland, 3 E. & B. 1. CHAPTER Where there is principal and surety. Contribution between joint makers. comprises, in reality and in legal effect, several notes (w). Thus, if A., B. and C. join in making a joint and several promissory note, there are, in effect, four notes. There is the joint note, of the three makers, and there are also the several notes of each of the three (x). The joint note may be valid although the several notes are void (y). Yet, for some purposes, it is still one contract. Thus, an alteration which affects the liability of one maker vitiates the entire instrument (z). Where a note is on its face joint, or joint and several, it is conceived that evidence to show that one maker is surety for the other (a) is inadmissible at law, if the question arise between the creditor and the surety; but evidence to that effect has been received (b). Where, however, the question arises between the principal debtor and the sureties in an action for indemnity or contribution, such evidence is admissible. Joint debtors equally liable, as between themselves (not being general partners (c)), are severally entitled at law to contribution (d), even against the executor of a contribu (w) Fletcher v. Dyte, 2 T. R. 6, Ashurst, J.; Owen v. Wilkinson, 28 L. J., C. P. 3; 5 C. B., N. S. 526, S. C. (a) See the observations of Parke, B., in King v. Hoare, 13 M. & W. 505; Bulbeck v. Jones, 5 Jur., N. S. 1317; Beecham v. Smith, E. B. & E. 442. In such a case the payee may sue the three, or each singly, he cannot do both. Streatfield v. Halliday, 2 T. R. 782. (y) Maclae v. Sutherland, 3 E. & B. 1. (z) Gardner v. Walsh, 5 E. & B. 91. (a) Price v. Edmunds, 10 B. & C. 578; Strong v. Foster, 17 C. B. 201; but see Manley v. Boycott, 2 E. & B. 46. (b) Garrett v. Jull, S. N. P. 377; and see the observations of Williams, J., in Reynolds v. Wheeler, 30 L. J., C. P. 351; 10 C. B, N. S. 561, S. C.; Hall v. Wilcox, 1 M. & Rob. 58. The admission of such evidence seems to contravene the general rule of law, that parol evidence is inadmissible to vary or explain a written contract. Where the indorsee sues, another objection interposes, that the indorsee would be affected by a contract of which he had no notice. Besides, from the case of Fentum v. Pococke, 5 Taunt. 192; 1 Marsh. 14, S. C., which has been recognized as law ever since it was decided, this general principle seems to result, that parties to a negotiable security shall be held to the consequences of the characters which they severally assume on the face of the instrument. Indeed, in Strong v. Foster, 17 C. B. 201, the Court of C. P., relying on some expressions of Lord Cottenham in Holtier v. Eyre, 9 Cl. & F. 45, seemed to think the rule the same in equity as at law. But the case of Strong v. Foster may be considered as overruled, see post, Chap. XVIII. And see Perfect v. Musgrave, 6 Price, 111, and Chap. XVIII. on PRINCIPAL and SURETY. (c) Sadler v. Nixon, 5 B. & Ad. 936. (d) Burnell v. Minot, 4 Moore, 340; Hutton v. Eyre, 6 Taunt. |