98, s. 6, that Bank of England notes shall be a legal tender for all sums above 57., except at the Bank of England or its branches. Formerly, money was kept with goldsmiths, who, about the year 1670, introduced, as receipts for deposits, promissory notes, payable to bearer, called Goldsmiths' Notes, the assignable *quality of these [*8] notes was strenuously denied by Lord Chief Justice Holt, in the reign of Queen Anne. At length, the stat. 3 & 4 Anne, c. 9, made them assignable, like bills. Checks on bankers have now superseded goldsmiths' notes, in London; but bankers' cash notes, or, as they were formerly called, shop notes, and country bank notes, are now what goldsmiths' notes were formerly. Country bank notes are also a legal tender, unless objected to, and are considered as cash.(c) Assumpsit for money had and received will lie for country bank notes and checks which have been treated as money, (d) but not oth erwise ;(e) for it has been held that an action for money had and received will not lie against the finder of lost notes unless they have been turned into money. No precise words of contract are essential in a promissory note, provided they amount in legal effect to a promise to pay. Thus, "I promise to account with A. B. or order, for 507., value received by me," has been held a good note within the statute. (f) So, "I do ac (e) Chitty, 521, 2; Owenson v. Morse, 7 T. R. 64; Ward v. Evans, 2 Ld. Raym. 928; Tiley v. Coursier, K. B. 1817; overruling Mills v. Stafford, Peake, N. P. 240, n.; Lockyer v. Jones, Peake, N. P. 240, n.; Polglass v. Oliver, 2 C. & J. 15; 2 Tyr. 89, S. C. (d) Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse, 4 Bing. 173; 12 Moo. 395, S. C. (e) Noyse v. Price, Chitty, 524. (ƒ) Morris v. Lee, 2 Ld. Raym. 1396; 1 Stra. 629; 8 Mod. 362, S. C. (1) "Goldsmiths' or bankers' notes, to which checks have been likened, are seldom now used, but have been superseded by the introduction of checks, which, on account of their being payable on demand, are considered as cash, and, like bankers' checks, are transferable by delivery, and are governed by the same laws and rules as bills of exchange. So long ago as the time of Lord Holt (Ld Raym. 744, 1 Salk. 132) goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be demanded in a reasonable time and not paid, it will charge him who gave the bill." Per Kent, J., in Cruger v. Armstrong, 3 Johns. Cas. 5. knowledge myself to be indebted to A. in 100%., to be paid on demand, for value received," was, after solemn argument, held to be a good note within the statute, the words, "to be paid," amounting to a promise to pay; the Court observing, that the same words in a lease would amount to a covenant to pay rent. (g) And where, for *an [*9] 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.(h) 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 (9) Casborne v. Dutton, S. N. P. 381; Brooks v. Elkins, 2 M. & Wels. 74. But in Horne v. Redfearne, (4 Bing. N. C. 433; 6 Scott, 260, S. C.), 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 guarantee, and not a note :-" Sept. 11, 1839. I undertake to pay to Mr. Robert Jarvis the sum of 67. 4s. for a suit of clothes ordered by Daniel Page." The Court observed that the expression "ordered" shewed that the consideraton was executory. "I, R. J. M., owe Mrs. E. the sum of 67., which is to be paid by instalment 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 Carr. & M. 16. "Memo. Mr. Sibree has this day deposited with me 5007. on the sale of 10,300. 31. per cent. Spanish, to be returned on demand." Held not to be a promissory note. Sibree v. Tripp, 15 L. J., Ex. 318; 15 M. & W. 23 S. C. "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, 18 L. J. 316, Exch.; 3 Exch. Rep. 689, S. C. 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 Dow. 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 807. 78., which sum I will pay you within two years from this date. I am, Gentlemen, your obedient servant, Wheatley v. Williams, 1 M. & W. 533. Thos. Williams." 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. (h) 2 Atkyns, 32; Allan v. Mawson, 4 Camp. 115; Bayley, 5 Ed. 5. original parties (¿). Such is the common memorandum, J. 0. U.(k) A promissory note is not the less a note, because it contains a recital that the maker has deposited title deeds with the payee as a collateral security.(1) But an agreement to give further security in future would invalidate the instrument as a promissory note.(m) A CHECK on a banker is, in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer, on demand. A check is con () Waynam v. Bend, 1 Camp. 175. (k) Israel v. Israel, 1 Camp. 499; Fisher v. Leslie, 1 Esp. 426; Childers v. Boulnois, D. & R., N. P. C. 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 Tompkins v. Ashby, 6 B. & C. 541; 9 D. & R. 543; 1 M. & M. 32, S. C. See further on this subject Chapter iv. on an I. O. U. (7) Wise v. Charlton, 4 Ad. & E. 786; 6 N. & M. 364; 2 Har. & W. 49, S. C.; Fancourt v. Thorn, 15 L. J., Q. B. 344. But such a note will generally require a mortgage stamp, which may, however, be impressed on the note after it is made. See further Chapter xxiii. on Interest and Usury. (m) See Chapter xii. on Irregular Instruments. sequently subject in general, to the rules which regulate the rights and liabilities of parties to bills of exchange. Checks on bankers, however, have of late years come into use so frequent, as commonly to supercede in payments of any considerable amount, not only gold and silver coin, but bank notes themselves. With their universal use have grown up certain usages peculiar to checks, which usages are now engrafted on the commercial law of the country.(1) Moreover, the Legis (1) A bank check is substantially the same as an inland bill of exchange; it passes by delivery, when payable to bearer, and the rules, as to presentment, diligence of the holder, &c. which are applicable to the one, are generally ap plicable to the other. Woods v. Schrader, 4 Har. & J. 276. Cruger v. Armstrong, 3 Johns. Cas. 5. Conroy v. Warren, Ib. 259. Merchants Bank v. Spicer, 6 Wend. 445. Murray v. Judah, 6 Cow. 484. Glenn v. Noble, 1 Blackf. 104. Smith v. James, 20 Wend. 192. It is said by Judge Cowen in Harker v. Anderson, 21 Wend. 372, that a check is a bill of exchange payable on demand: and he refers to Brown v. Lush, 4 Yerger, 216, in which a draft payable at a certain day after date was held not to be a check. This case is said to have been determined on the authority of a passage in Chitty on Bills (7 Am. Ed. 322, 10th Am. Ed. 512.) "Checks are not due before payment is demanded, in which respect they differ from bills of exchange and promissory notes payable on a particular day." The passage by no means warrants the inference, but if it did, it would find no support in the authority Chitty cites in its support. Judge Story entirely repudiates such a distinction. In the matter of Brown, 2 Story Rep. 502, he says: "a check is not less a check because it is post dated, and thereby becomes, in effect, payable at a future and different time from that in which it is drawn or issued. This is sufficiently apparent from the case of Allen v. Reeves, 1 East Rep. 435. That it may be declared upon as a bill of exhange is no proof that it may not also be declared upon as a check. In many cases they are identical in their legal results; but by no means in all. Mr. Chitty very properly says, that a check nearly resembles a bill of exchange; but (he adds) it is uniformly made payable to bearer and should be drawn upon a banker or a person acting as such. Chitty on Bills, 10 Am. Ed. p. 511. I agree that it nearly resembles a bill of exchange; but nullum simile est idem. It is commonly although not always made payable to the bearer; but I conceive it to be still a check, if drawn on a bank or banker, although payable to a particular party only by name, or to him or his order. It is usually, also, made payable on demand; although I am not aware that this is an essential requisite. The distinguishing characteristics of checks, as contradistinguishing from bills of exchange are (as it seems to me) that they are always drawn on a bank or banker; that they are payable immediately on presentment without the allow ance of any days of grace; and that they are never presentable for mere acceptance; but only for payment.” Chancellor Kent (3 Kent's Com. 104. n. 7th Ed.) questions Judge Cowen's doctrine in the same case, that a check is to all intents and purposes but a bill of exchange. He says, "a check differs from a bill of exchange in several particulars. It has no days of grace and requires no acceptance distinct from prompt payment. The drawer of a check is not a surety but the principal debtor as much as the maker of a promissory lature having exempted them from stamp duty, questions have arisen as to what instruments are or are not within the exemption, and as to the consequences of attempts to violate the provisions of the Stamp Acts. In this Chapter it is intended to point out some of those qualities and incidents, which distinguish checks from other bills. The learned reader will perhaps think that such observations are at present premature *but it has been thought conducive to perspicuity, that [*11] the rest of the book should be disembarrassed of distinctions solely applicable to checks, and that a summary of the law peculiarly relating to them should be attempted in the same part of the work, where observations relating peculiarly to bills or notes are to be found. It is hoped that any obscurity, caused by anticipating what is to follow, will be removed by turning to subsequent Chapters. The present general Stamp Act, (a) while it subjects bills in general to stamps, exempts from all stamp duties: All drafts or orders for the payment of any sum of money to the bearer on demand, and drawn upon any banker or bankers, or any person or persons acting as a banker, who shall reside or transact the business of a banker, within ten miles (now fifteen miles, 9 Geo. 4, c. 49, s. 15), (b) of the place where such drafts or orders shall be issued, (e) provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the payment to be made by bills or promissory notes. In order, therefore, to bring checks within the exemption, they (a) 55 Geo. 3, c. 184, Sched. (b) If a defendant wish to avail himself of this defence, he should plead that he did not make the check declared on. McDowell v. Lyster, 2 M. & W. 52; Field v. Woods, 7 Ad. & E. 114; 2 N. & P. 117; 6 Dowl. 23, S. C. (e) What not an issuing, ex parte Bignold, 2 Mont. & Ayr. 663; 1 Deac. 712, S. C. Chitty, 118. note. It is an absolute appropriation of so much money in the hands of the banker to the holder of the check, and there it ought to remain until called for, and the drawer has no reason to complain of delay, unless upon the intermediate failure of his banker. By unreasonable delay in such a case, the holder takes the risk of the failure of the person or bank on which the check is drawn. This is quite distinct from the strict rule of diligence applicable to a surety, in which light stands the endorser." This view has been adopted by judicial authority. Daniels v. Kyle, 1 Kelly, 304. A check post-dated is payable on the day of its date without any days of grace. Mohawk Bank v. Broderick, 10 Wendell, 405; Salter v. Burt, 20 Wendell, 205. |