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any part thereof. By sec. 8, lightermen, &c. refusing to give

notes and to insert the words value received in coals, and masters taking such notes without the words value received in coals, are subjected to a penalty of 100l. This act extends only to contractors for coals, and to cases between an indorser and indorsee. Smith v. Wilson, And. 187. It is said to have been held that when these notes are not drawn in the form recognised by the statute, they are not void, but that the effect is to subject the party to a penalty. Per Holroyd, J. Wigan v. Fowler, 1 Stark. 463.

Insolvent notes.] Where a prisoner is brought up to be discharged under the Lords' act, 32 Geo. 3. c. 28. and the creditor insists on his being detained in prison, he must agree in writing, signed with his name or mark (or if he be out of England, under the hand of his attorney) to pay and allow the prisoner weekly a sum not exceeding 3s. 6d. (or if more creditors than one insist on his detention, not exceeding 2s. a week each, 37 Geo. 3. c. 85. s. 34. But see Barnes, 377.389, 90. Tidd, 385.) to be paid on Monday in every week so long as the prisoner shall remain in execution, and in every such case the prisoner shall be remanded, 32 Geo. 2. c. 28. s. 13. Tidd, 385. See further as to these notes, Ib. 386. Such notes do not require a stamp. Tekill v. Carey, 7 T. R. 670. If failure be made in payment of the weekly sums, the prisoner upon application to the court in term time, or to a judge in vacation, may be discharged out of custody, on executing an assignment and conveyance of his estate and effects, 32 Geo. 2. c. 28. s. 13.

A bill of exchange is a simple contract.] A bill of exchange or promissory note, is a simple contract, and is governed in general by the same rules which affect other simple contract debts. It therefore, for the purposes of administration, follows the person of the debtor, and is bona notabilia in the diocese in which he is resident at the time of his death. Yeomans v. Bradshaw, Carth. 373. 3 Salk. 60. 164. Comb. 392. S. C. For the same reason it is within the Statute of Limitations, and must be sued on within six years. Vide post, Chap. XII.

A bill of exchange is a chose in action.] A bill of exchange or promissory note is merely a chose in action, and cannot therefore be the subject of a donation mortis causá. Miller v. Miller, 3 P. Wms. 365. Tate v. Hibbert, 2 Ves. J. 111. Holliday v. Atkinson, 5 B. & C. 503. See Lawson v. Lawson, 1 P. Wms. 441. and Woodbridge v. Spooner, 2 B. and A. 233. But the delivery of a check, by a person on the approach of death, is as it seems good as a gift, if the donee receives the amount from the bankers in the donor's lifetime, or before the

banker has notice of the donor's death, or if the donee negotiate the check for a valuable consideration, or in payment of a debt; but such check will not operate as an appointment of so much, if the donee retains it in his possession till after the donor's death. Tate v. Hibbert, 2 Ves. J. 111. On the same ground it was held that bank notes, &c. cannot be taken in execution, for though assignable over, yet they remain in some measure choses in action. Francis v. Nash, Kep. temp. Hardw. 53. Knight v. Criddle, 9 East, 48.

A bill or note must be for payment of a specific sum of money only.] A bill or note must be for the payment of money (Note 4). A promise to pay money and do some other thing, ex. gr. deliver a horse, is not within the statute, Moor v. Vanlute, B. N. P. 272. Martin v. Chauntry, 2 Str. 1271. promise to pay 300l. to B. or order, in three good East India bonds. B. N. P. 272. Smith v. Boheme, Gilb. Ca. L. & E. 93.

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So a promise to pay "in cash or bank of England notes." Ex parte Imeson, 2 Rose, 225. Bayley, 7. R. v. Wilcox, Bayley, 8. Ex parte Davison, Buck, 31. So where the instrument was, "I promise to pay J. E. the sum of 65l. with lawful interest for the same, three months after date, and all other sums which may be due to him;" Lord Ellenborough was of opinion that the instrument was too indefinite to be considered as a promissory note, and that since the whole constituted an entire promise, it could not be divided into parts. Smith v. Nightingale, 2 Stark. N. P. C. 375. But a promise to pay so many pound instead of pounds, is a good note. R. v. Post, Bayley, 8. Where the defendant promised to pay 400l. to the representatives of J. S. " first deducting thereout any interest or money J. S. might owe to the defendant," it was held that the deduction resting entirely in contingency, the instrument could not be considered as a promissory note to pay a certain or definite sum at all events. Barlow v. Broadhurst, 4 B. Moore, 471.

A bill or note must not be conditional or contingent.] A bill or note must be absolute in its terms, and if there be any condition or contingency, either with regard to the time of payment, or the fund out of which payment is to be made, or the parties by or to whom the payment is to be made, it will not be a valid bill of exchange within the custom of merchants, or a valid promissory note within the stat. 3 and 4 Ann. c. 9. Nor can such an instrument be considered, even between immediate parties, as a bill or note. Leeds v. Lancashire, 2 Campb. 207. post. If such an instrument constitute a valid agreement, in order to be enforced it must be stamped as such, and the plaintiff must declare as on a special agreement; see Blanckenhagen v. Blundell, 2 B. and A. 419. Smith v. Nightingale,

2 Stark. 375; unless it can be given in evidence under the count on an account stated. Barlow v. Broadhurst, 4 B. Moore, 471.

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Where the time of payment is contingent.] A note to pay sixty guineas when the maker marries B. was held bad, for it is uncertain whether he will ever marry, and so the time of payment may never come. Pearson v. Garrett, 4 Mod. 242. Comb. 227. S. C. Colehan v. Cooke, Willes, 397. Beardsley v. Baldwin, 2 Str. 1151. 7 Mod. 417. S. C. So a note to pay money or surrender a person; for if the surrender is made, the money is never to be paid. Smith v. Boheme, Gilb. Ca. L. and E. 93, cited, 2 Ld. Raym. 1362, 7 Mod. 418. So where an order imported to be payable provided the terms mentioned in certain letters written by the drawer were complied with," it was held that this order was no bill of exchange. Kingston v. Long, Bayley, 13. So where the instrument was we promise to pay, &c. on the death of G. H. provided he leaves either of us sufficient to pay the said sum, or if we shall be otherwise able to pay it," this was held to be payable upon a contingency, and not an absolute note, nor negotiable. Roberts v. Peuke, 1 Burr. 323. and see Ex parte Tootell, 4 Ves. 372. post, Ch. XIV. So a note promising to pay on the sale or produce, immediately when sold, of the White Hart, St. Albans, Herts, and the goods, &c. value received," cannot be declared upon as a promissory note, though it be averred that, before the action commenced, the White Hart and the goods were sold. Hill v. Halford, 2 B. & P. 413. An instrument was given in evidence in the following form :-"We jointly and severally promise to pay to Mr. T. L. & Co. or order the sum of 2001. for value received by us. As witness our hands, &c. J. M., J. L., E. B." On the back of the instrument were these words, which were proved to have been written before it was signed by L. or B.:-" The within note is taken for security of all such balances as J. M. may happen to owe to T. L. and Co. not extending further than the within named sum of 200l., but this note is to be in force for six months, and no money liable to be called for sooner in any case." In an action by L. & Co. against J. L., Lord Ellenborough was of opinion that, as between these parties, the instrument in question was only an agreement and not a promissory note; but that in the hands of a bona fide holder who received it as a promissory note, might possibly be considered as such. Leeds v. Lancashire, 2 Cumpb. 205. But where there appeared to be the following indorsement on a note which did not distinctly appear to have been written before the note was signed "Although the within promissory note is payable by C. M. in months, my will and desire is, that the money shall not

be called in for two years, and that if the said C. M. shall wish for further time, he shall have the same without suit at law, until three years next after my decease." (Signed by the payee,). and it was contended that the indorsement was part of the note. Per Lord Ellenborough; "I have on one side of the paper a perfect note in point of law, and on the other, that which, if it had been stamped might have operated as a defeasance, but without a stamp I cannot look at it. Supposing, however, these words to be incorporated, they are words of mere indulgence and favor." Stone v. Metcalf, 1 Stark. 53. 4 Campb. 217. S. C. Where the instrument was :-" Borrowed and received of J. & J. W. the sum of 2001. in three drafts, dated as under, &c. which we promise to pay unto the said J. & J. W. with interest," &c. Lord Ellenborough thought that this was a special agreement, and not a promissory note, for the money was not to be paid at all unless the drafts were honoured. Williamson v. Bennet, 2 Campb. 418. Where a note had the following indorsement made before the note was subscribed; "This note is given on condition that if any dispute shall arise between Mr. H. & Lady W. respecting the fir, the note to be void;" it was held not to be a note payable at all events, but contingent. Hartley v. Wilkinson, 4 M. & S. 25. 4 Campb. 127. S. C. So an instrument in this form, "At thirty days after the arrival of the ship Paragon, at Calcutta, pay," &c. was held not to be a bill of exchange. Palmer v. Pratt, 2 Bingh. 185. 9 B. Moore, 388. S. C. But if the time at which the bill or note is made payable must happen, although it is not certain when it will happen, the bill or note is good. Thus, it has been held that a promissory note to pay within two months after such a ship is paid off is a good note, because the ship would certainly be paid off one time or another. Andrews v. Franklin, 1 Str. 24. recog. Willes, 399. but in Beardsley v. Baldwin as reported 1 Selw. N. P. 367. 4th Ed. the court said that as to Andrews v. Franklin, if it ever was determined, which they could not find, it must have been decided on the certainty observed in the return of ships, and which must be looked upon as an event in itself not contingent; and see 1 Wils. 263. where it is said arg. that Andrews v. Franklin, was never determined. Where the note was I promise to pay J. S. 11. at the payment of the ship Devonshire," it was held good, and Lord Hardwicke is reported to have said, "as to the time, this note is certainly within the statute, if it had been made payable at any precise future day, and if it be uncertain at first but referred to a subsequent fact to make it certain, when that fact happens (as in this case it was averred that the ship Devonshire was paid), it is as much reduced to a certainty as if the day had been mentioned at first." Lewis v. Orde, 1 Selw. N. P. 367. 4 Ed. Cunningham, Bills of Exchange. 127. 2nd Ed. The reasoning of

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Lord Hardwicke is in opposition to the cases of Carlos v. Fancourt, 5 T. R. 482, post, and Hill v. Halford, 2 B. & P. 413. ante, p. 13 When the note was, "I promise to pay G. P. or order 81. upon the receipt of his, the said G. P's. wages from his Majesty's ship the Suffolk," &c. the court, it is said, on the authority of Andrews v. Franklin, held the note good. Evans v. Underwood, 1 Wils. 262. But this decision has been doubted, because it is uncertain, though the wages might be paid, whether the maker of the note would receive them. So where J. C. the maker of a note promised to pay to H.D. or order 150 guineas, ten days after the death of his father J.C., this was held a good promissory note. Colehan v. Cooke, Willes, 393. S. C. in error, 2 Str. 1217. And where a note was made payable, when the payee should come of age, and specifying the day, it was held that the time of payment was certainly fixed, and that the note was good. Goss v. Nelson, 1 Burr. 226. Upon the same principle the bills of exchange commonly called billa nundinales have been held good, because, though these fairs were not always holden at a certain time, yet it was certain that they would be held. Per Willes, J. C. Colehan v. Cooke, Willes, 339. (Note 5.)

Where the fund out of which payment is to be is contingent.] Where the fund, out of which the payment of a bill or note is directed to be made, is contingent or limited, such bill or note is invalid. Thus, when a bill was drawn upon one Josceline to pay so much every month out of his growing subsistence, it was held not to be good, because the fund was uncertain. Josceline v. Laserre, Fort. 281. 10 Mod. 294, 317. Willes, 397. So where the bill was drawn payable "out of the monies in the drawee's hands belonging to the proprietors of the Devonshire mines, being part of the consideration money for the purchase of the manor of West Buckland," it was held, upon error, that this appointment to pay out of a particular fund which might or might not answer, was not a bill of exchange, Jenny v. Herle, 1 Str. 591. 2 Ld. Raym. 1361. 8 Mod. 266. S. C. So when a bill was made payable "out of the fifth payment when it should become due." Haydock v. Lynch, 2 Ld. Raym. 1563. So where payable, "out of W. S.'s money as soon as you shall receive it." Dawes v. Deloraine, 2W. Bl. 782. 3 Wils. 207. S.C. So a note payable "out of the maker's money that should arise from his reversion of 431. when sold," was held not to be a promissory note, but a special agreement. Carlos v. Fancourt, in error, 5 T. R. 482. So an order to pay a certain amount and interest, out of certain purchase money, for value received, is not a bill because it is payable out of a particular fund. Yeates v. Groves, 1 Ves. J. 280. So also a note "to pay at four years after date if I am then living, otherwise this bill to be null and

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