A MERE acknowledgment of a debt does not amount to a promissory note.(1) Such an acknowledgment is frequently made in an abbreviated form, thus, London, 1st January, 1846. Mr. A. B. I. O. U. 100. C. D. An acknowledgment of a debt in this form is called an I. O. U. It is evidence of an account stated but not of money lent.(a) Not amounting to a promissory note, and being merely evidence of a debt due by virtue of some antecedent contract, it requires no stamp.(6) Nor indeed is a stamp required for any instrument which is merely an acknowledgment of money deposited to be accounted for, and not a receipt for money antecedently due. (c) Therefore a paper stating that the party signing it had certain bills in his hands (a) Fesenmayer v. Adcock, 16 M. & W. 449. (b) Fisher v. Leslie, 1 Esp. 425; Israel v. Israel, 1 Camp. 499; Childers v. BoulLouis, D. & R., N. P. Ca. 8; Beeching v. Westbrook, 8 M. & W. 412. (c) Tomkins v. Ashby, 6 B. & C. 541; 9 D. & R. 543; 1 M. & M. 32, S. C.; Casborne v. Dutton, Selwyn's N. P. 381, 9th ed.; Payne v. Jenkins, 4 C. & P. 324. (1) That a due bill is a promissory note, see Cummings v. Freeman, 2 Humph. 143. Finney v. Shirley, 7 Missouri, 42. McGowen v. West, Ibid. 569. Harrow v. Dugan, 6 Dana, 341. Marrigan v. Page, 4 Humph. 247. A written acknowledgment of indebtedness in a certain sum to a certain person, with a statement of the consideration, is a promissory note. Fleming v. Burge, 6 Alabama, 373. which he held to get discounted or return on demand, requires no stamp.(d) *But if the I. O. U. contain an agreement that it is to be [*20] paid on a given day it will be a promissory note, and must be stamped as such. And if the contracting words be such as to make it not a promissory note, but an agreement, it must be stamped accordingly, (e) unless it be under 207. in amount.(ƒ) The following instrument was held to be a mere I. O. U., not to be a promissory note, and to require no stamp: "1839, Nov. 11, I. O. U. forty-pounds thirteen shillings, which I borrowed of Mrs. Melanotte, and to pay her five per cent, till paid."(g) An instrument in this form, "I. O. Mr. John Gould the sum of 2007. for value received," requires no stamp. (h) It is conceived that a mere I. O. U., given by a surety for the debt of another man, is void by the Statue of Frauds.(i) An I. O. U. ought regularly to be addressed to the creditor by name; but though not addressed to any one it will be evidence for the plaintiff, if produced by him.(k) This rule is convenient and safe. For if the I. O. U. were given (as it often is) when no one but the plaintiff and defendant were present, it would be impossible for the plaintiff to prove how he became possessed of it, but if the I. O. U. were given to a third party the defendant has ordinarily the means of proving it. It has been held that a bill in equity will lie to discover whether an I. O. U. were given for a gaming debt.(7) The Court will not restrain an action on an I. O. U. given partly (d) Mullett v. Hutchison, 3 C. & P. 92; 7 B. & C. 639, S. C.; Langdon v. Wilson. 2 Man. & R. 10; Williamson v. Bennett, 2 Camp. 417; Horne v. Redfearne, 4 Bing. N. Ca. 433; 6 Scott, 260, S. C. (e) Brooks v. Elkins, 2 M. & W. 74. (ƒ) Evans v. Phillpotts, 9 C. & P. 270. (9) Melanotte, Adm. v. Teasdale, 13 M. & W. 216. (h) Gould v. Coombs, 14 L. J. 175, C. P.; 1 C. B. Rep. 543, S. C. (i) So held by the Court of Exchequer, in 1845. Admitted by counsel to be so. And see Gould v. Coombs, 14 L. J. 175, C. P.; 1 C. B. Rep. 550. (k) Curtis v. Rickards, 1 M. & G. 46; 1 Scott, N. R. 155; Douglas v. Holme, 12 Ad. & E. 641; Fisher v. Leslie, 1 Esp. 427; Fesenmayer v. Adcock, 16 M. & W. 449. (1) Wilkinson v. L'Eaugier, 2 Younge & Collyer, 366. for money lent to play at games of chance not illegal in Germany, and partly for money won at cards not exceeding 10l. at a time.(m) [*21] *CHAPTER V. OF THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR (m) Quarrier v. Colston, 12 L. J. 57, Ch. ; 6 Jurist, 959. *WHATEVER a man may do by himself (except in virtue of a delegated authority), he may do by his agent.(a) [*22] Disqualifications for contracting on a person's own account are not disqualifications for contracting as an agent for another; for an agent is considered as a mere instrument. Therefore, infants,(b) married women, persons attainted, outlawed, or excommunicated, aliens, and other persons labouring under disabilities, may be agents.(c) No particular form of appointment is necessary to enable an agent to draw, accept, or indorse bills, so as to charge his principal. He may be specially appointed for this purpose, or may derive his power from some general or implied authority. Subsequent recognition of an agent's acts is equivalent to previous authority; provided the agent, when he acted, assumed to act as agent.(d) General authorities to transact business, and to receive and discharge debts, do not confer upon an agent the power of accepting or indorsing bills, so as to charge his principal.(e) And special authorities to accept or indorse are construed strictly.(1) A. B., who carried on (a) Coombe's case, 9 Co. 75. (b) But an infant though he may be a private, cannot be a public attorney; that is, an attorney at law to conduct suits. Mirror, c. 2, s. 21; Co. Litt. 128, a. (c) Co. Litt. 52, a. (d) Viner's Ab. Ratihabition; Saunderson v. Griffiths, 5 B. & C. 909; D. & R. 643; Vere v. Ashby, 10 B. & C. 288. See the law of Ratihabition, discussed in Wilson v. Tumman, 6 Man. & G. 236. (e) Hogg v. Snaith, 1 Taunt. 347, and Hay v. Goldsmid, there cited; Murray v. East India Company, 5 B. & Al. 204; and see Howard v. Baillie, 2 H. Bla. 618; Gardner v. Bailie, 6 T. R. 591; Kilgour v. Finlyson, 1 H. Bla. 155; Hay v. Goldsmid, 2 Smith's Rep. 79; Esdaile v. Lanauze, 1 Y. & Col. 394. (1) Whether an agent has power to draw or indorse bills or notes, will depend upon the construction of the words used in his appointment. When certain special objects are enumerated, subsequent general words will be restrained business on his own account, and also in partnership, went abroad, and gave to certain persons in this country two powers of attorney; by the first of which, authority was given for him, and his name and to his use, to do certain specific acts (and, amongst others, to indorse to these objects. Thus a power of attorney to collect debts, to execute deeds of lands, to accomplish a complete adjustment of all concerns of the constituent in a particular place, and to do all other acts which the constituent could do in person, does not authorize the giving of a note by the attorney in the name of the principal. Rossiter v. Rossiter, 8 Wendell, 494. The power will be limited by the general objects and purposes for which it is conferred. The appointment of an attorney by writing "with full power and authority for me, and in my name, to draw or to indorse promissory notes, to accept, draw, or indorse bills of exchange," does not authorize the attorney to draw or indorse notes for the mere accommodation of third persons. The general intention was, that the attorney should transact the business which it particularises for the constituent and in his name: And this intent can only be upheld by limiting the authority of the attorney to cases in which he acts on account of his principal. Wallace v. The Branch Bank at Mobile, 1 Alabama 565. Kingsley v. The Bank of the State, 3 Yerger, 107. A power of attorney to execute promissory notes for discount at a bank to a certain amount, does not authorize the renewal of said notes. Ward v. The Bank of Kentucky, 7 Monroe, 93. A power to B. to sign and indorse notes at a bank, gives B. authority to sign and indorse any note payable at, and due to that bank, and no other; Morrison v. Taylor, 6 Monroe, 82. Where the agent of a manufacturing company was authorized, by a vote of the directors to raise money for his own use upon the credit of the company, and to give therefore a "com pany note;" it was held that the terms 66 company note" were not used in the vote to designate a technical promissory note, and that a bill of exchange drawn by the agent in the name of the company, upon the dishonour of which by statute they could not be liable for any damages was a company note within the meaning of the vote. The law, however, is very clear, that the party giving the authority may limit it precisely, and even arbitrarily; and it is not enough to say that the security given is not more onerous than the one authorized. Tripp v. Swansey Manuf. Co., 13 Pick. 291. A supercargo cannot bind his principals as acceptors of a bill drawn by himself, without express authority to that effect communicated to and relied on by the person who receives the bill. Scott v. McLellan, 2 Greenleaf, 199. It is to be observed, that although, as stated in the text, ratification is in general equivalent to antecedent authority, yet it has been decided, that where the drawer of a note affixes his signature as the agent of another, if in an action against him personally, he claims to have had authority to sign as he did, he is bound to show such authority existing at the time of the making of the note, and is not permitted to show a subsequent ratification by his principal; such ratification would avail to render the principal liable, but not to relieve the agent from the personal liability once incurred by giving the note. The note when executed was either the note of the one or the other-if it was not then the note of the principal, it was the note of the attorney. Rossiter v. Rossiter, 8 Wendell, 494. |