The happening of the contingency on which the payment of the bill is dependent will not cure the defect.(o)

A note begining "I, A. B., promise, &c." and signed A. B., or else C. D., is a good note against A. B., but only evidence as against C. D. of a conditional agreement to pay, if A. B. does not.(p)

In this last case the maker or payer was uncertain; the note, as such, is not available at all, if the payee be uncertain. Thus, where the maker promised to pay to A., or to B. and C. a certain sum, Abbott, C. J., said, "I have no doubt this instrument is not a promissory note within the statute of Anne: for, if a note is made payable to one or other of two persons, it is payable only on the contingency of its not having been paid to the other, and is not a good promissory note, within the statute.(q)

Upon the same principle, the bill or note must not be made payable out of a particular fund,(r) for the fund may prove insufficient.(1)

(0) Chitty, 7th ed. 45; Hill v. Halford, 2 B. & P. 413; Chitty, 9th ed. 135, 144. (p) Ferris v. Bond, 4 B. & Ald. 679; and see Appleby v. Biddulph, B. N. P. 272, cited Morice v. Lee, 8 Mod. 363; 4 Vin. Ab. 240, pl. 16.

(q) Blanckenhagen v. Blundell, 2 B. & Ald. 417.

(7) Jenny v. Herle, 2 Ld. Raym. 1361; 8 Mod. 265; 1 Stra. 591, S. C.; Haydock v. Lynch, 2 Ld. Raym. 1563; Dawkes v. Lord de Loraine, 2 Bla. Rep. 782; 3 Wils. 207, S. C.; Yates v. Grove, 1 Ves. jun. 280; Carlos v. Fancourt, 5 T. R. 482.

(1) It is essential to a bill or note that it be payable in money only, at all events and not out of a particular fund. Atkinson v. Manks, 1 Cow. 691. Cook v. Satterlee, 6 Cow. 108. Waters v. Carlton, 4 Porter, 205. Tucker v. Maxwell, 11 Mass. 143. Wooley v. Sergeant, 3 Halst. 262. Mills v. Kuykendall, 2 Blackf. 47. May v. Lansdown, 6 J. J. Marsh. 170. Van Vacter v. Flack, 1 Smedes & Marsh. 393. Hamilton v. Myrick, 3 Pike, 541. Rice v. Porter, 1 Harr. 440. Wallace v. Dyson, 1 Spears, 127. Strader v. Batchelor, 8 B. Monroe, 168. Warden v. Dodge, 4 Denio, 159.

An order of a client on an attorney, to pay money out of any sum collected for him is not a bill of exchange. Crawford v. Cully, Wright, 453. So an order for a certain amount in merchandize

is not a bill of exchange. Gwinn v. Roberts, 3 Pike, 72. Bradley v. Morris, 3 Scamm. 182. Carleton v. Brooks, 14 New Hamp. 149. An order to pay over rents accruing up to a specified time, is not a bill of exchange, though the rents were payable in money. Morton v. Naylor, 1 Hill, 583.

on 1st January

An order in this form 1836, pay to my order five thousand dollars, for value received, and charge the same to my account for transporting the United States' Mail," is not negotiable so as to entitle the holder to sue in his own name. Reeside v. Knox, 2 Whart. 233. An order drawn upon the treasury by a public officer, for his salary is not a bill of exchange. Strader v. Batcheler, 8 B. Monroe, 168.

A bill of exchange in form, drawn by

Plaintiff drew upon A., and required him to pay B. 77. per month out of plaintiff's growing subsistence. This was held no bill of exchange for had plaintiff died, or his subsistence been taken away, the bill would not have been payable.(s) So, an order from the owner of a ship to the charterer, to pay money on account of freight, is no bill, for the future existence and amount of any debt due for freight, is subject to a contingency.(t) And the same rule holds if the contingency is expressed on the back of the note, by an indorsement made before the note was a perfect instrument.(u)

*But the statement of a particular fund in a bill of exchange [*74] will not vitiate it, if introduced merely as a direction to the drawee how to reimburse himself: thus, a bill directing the drawee to pay J. S. 97. 108., "as my quarterly half-pay," was held to be a good bill.(v)

If the instrument be defective as a bill or note, it still may be evidence of an agreement.(w)

(8) Josselyn v. Lacier, 10 Mod. 294; Fort. 281, S. C.; see Russell v. Powell, 14 M. & W. 418.

(1) Banbury v. Lissett, 2 Stra. 1211.

(u) Leeds v. Lancashire, 2 Camp. 205.

(r) Macleod v. Snee, 2 Str. 762.

(w) As to the proper stamp in such a case, see ante, Chapter iv.

one government on another, as the bill drawn by our government on the government of France, for moneys due according to a treaty stipulation, is not and cannot be governed by the law merchant, and therefore is not subject to protest and consequential damages. United States v. Bank of the United States, 5 Howard, (U. S.) Rep. 382.

An order drawn in express terms for a particular fund, will operate as an assignment of the fund; but it will not be negotiable, and is not a bill of exchange. Cowperthwaite v. Sheffield, 1 Sandf. Sup. Ct. Rep. 416.

[ *75]

*CHAPTER VIII.

OF AGREEMENTS INTENDED TO CONTROL THE OPERATIONS OF BILLS OR NOTES.

SUCH agreements are either WRITTEN OR VERBAL.

A WRITTEN agreement is either on the instrument itself or on a distinct paper. Again a written agreement on the instrument itself, is either contemporaneous with the completion of the bill or note, or it is a subsequent agreement. Once more, even a contemporaneous written agreement may either be parcel of the instrument, or it may be collateral.

A memorandum on a bill or note, made before it is complete, is sometimes considered as part of the instrument, so as to control its operation, and sometimes not.

If the memorandum make the payment contingent, we have seen that it will be incorporated in the note. (a) But, where it is merely directory, as if it points out the place of payment, (b) or be merely the

(a) Leeds v. Lancashire, 2 Camp. 205; Hartley v. Wilkinson, 4 M. & Sel. 25; 4 Camp. 127, S. C. Though by way of indorsement; Leeds v. Lancashire, ubi supra. A joint and several promissory note had an indorsement in this form, "The within note is given for securing floating advances from the Lincoln and Lindsay Banking Company, to the within named Thomas Smith, Sen., (one of the joint and several makers of the note), with lawful interest for the same, from the respective times when such advances have been or may be made, together with commission stamps, postages, &c., and all usual charges and disbursements, not exceeding, in the whole, the sum of 1007. within mentioned." It was held to be an agreement which could not be read in evidence without an agreement stamp. Sed quære, whether the indorsement were any thing more than an explanation of the consideration. Cholmley v. Darley, 14 M. & W. 344. See the Chapter on Consideration.

(b) Exon v. Russell, 4 M. & Sel. 505.

expression of an intended courtesy, as if it intimate a wish

[*76]

that the money lent should not be called in by the payee's executors till three years after his death ;(c) or if it import that a collateral security (as the deposit of title deeds) has been given ; (d) or be intended only to identify and ear-mark the instrument ;(e) it does not affect its operation.

A memorandum made after the note is perfected and delivered is an independent agreement, requiring an agreement stamp. "If," says Lord Ellenborough, "the memorandum was subsequently written, when the note had been perfected and delivered in its absolute state, it could not be considered as a part of that instrument, though it chanced to be inscribed upon the same piece of paper. In that case, it was an agreement by way of defeazance, and it lay upon the defendant to produce it with a proper stamp.(ƒ)

A written agreement, on a distinct paper, to renew, or in other respects to qualify, the liability of the maker or acceptor, is good as between the original parties.(g) Thus, if the drawer agree to indemnify the acceptor against a claim by other parties, for a portion of the sum for which the bill is drawn, and the acceptor afterwards pays those other parties a sum to which the indemnity applies, the acceptor's liability, as between himself and the drawer, will be reduced pro tanto, and he will not be turned round to his cross action on the indemnity.(h)

But a written agreement, though contemporaneous, will not restrain the operation of the bill or note if it be collateral, e. g. if other persons besides the parties to the bill or note be parties to it.(?)

No VERBAL agreement can take effect, if contemporaneous with the making of the instrument; for that would be to allow verbal evidence to vary a written contract.(k) "Every bill or note," says Parke, J., (e) Stone v. Metcalfe, 4 Camp. 217; 1 Stark. 53, S. C.

(d) Wise v. Charlton, 4 Ad. & E. 786; 6 Nev. & M. 364; 2 Har. & W. 49, S. C.; Fancourt v. Thorne, 15 L. J. Q. B. 344; 9 Q. B. 312, S. C.

(e) Brill v. Crick, 1 M. & W. 232.

(f) Stone v. Metcalf, 4 Camp. 217; 1 Stark. 53, S. C.

(g) Bowerbanch v. Monteiro, 4 Taunt. 844.

(h) Carr v. Stephens, 9 B. & C. 758; 4 Man. & Ryl. 591, S. C.

(i) Webb v. Spice, 19 L. J. 34, Q. B., on error in Exchequer Chamber.

(k) Hoare v. Graham, 3 Camp. 57; Free v. Hawkins, 8 Taunt. 92; 1 Moore, 28,

S. C.; Woodbridge v. Spooner, 3 B. & Ald. 233; 1 Ch. R. 661, S. C.; Moseley v. Hanford, 10 B. & C. 729; Foster v. Jolly, 1 C., M. & R. 703; 5 Tyr. 255, S. C.; Richards v. Thomas, 1 C., M. & R. 772; Holt v. Miers, 9 C. & P. 191.

"imports two things, *value received, and an engagement to [*77] pay the amount on certain specified terms. Evidence is admissible to deny the receipt of value, but not to vary the engagement."(1)

An agreement to renew, without more, is an agreement to renew once only.(m)

A defendant has a right at the trial to call on the plaintiff to read any indorsement that may be on the bill.(n)

Though it may be necessary that the agreement affecting the operation of the bill or note should be in writing, it is not necessary in pleading to aver that it is in writing.(0)

(7) Abbott v. Hendricks, 1 M. & G. 795; Moseley v. Hanford, 10 B. & C. 729. "The cases," says Maule, J., "show that although a consideration is stated in the note, you may show that it was given for a different consideration or without any consideration at all." Abbott v. Hendricks, 1 M. & G. 791; 2 Scott, N. R. 183, S. C.; but see Ridout v. Bristow, 1 C. & J. 231; 1 Tyr. 84, S. C., and Edwards v. Jones, 2 M. & W. 414; 5 Dowl. 585; 7 C. & P. 633; S. C. In Pike v. Street, 1 Dans. & Lloyd, 159; 1 M. & M. 226, it was held a good defence to an action against the drawer, that at the time when the plaintiff discounted the bill he verbally agreed, in the event of its being dishonoured, not to proceed against the drawer who had indorsed the bill to him. Vide the Chapter on Transfer.

(m) Innes v. Munro, 1 Exch. Rep. 473.

(n) Richards v. Frankum, 9 C. & P. 221. As to agreements by clerks in fraud of their employers. See Bosanquet v. Foster, 9 C. & P. 659; Bosanquet v. Corser. 9 C. & P. 664.

(0) Kearns v. Durell, 18 L. J. 28, C. P.; 6 C. B. 596, S. C. See Gilbert v. Whit marsh, 8 Q. B. Rep. 969.