ARTICLE II. FORM AND INTERPRETATION. (i) Form Required. I. Writing and signature. § 20 GEARY v. PHYSIC. 5 BARNEWALL & CRESWELL (K. B.) 234. 1826. ASSUMPSIT by the plaintiff as indorsee against the defendant as maker of a promissory note for the sum of 301. payable two months after date to the order of one Folder, and indorsed by him, Folder, to one Kemp, who subsequently indorsed the note to the plaintiff. At the trial before Abbott, C. J., at the London sittings after Hilary term, 1825, it appeared that the indorsement by Kemp to the plaintiff was in pencil, and it was thereupon objected that the plaintiff could not recover; an indorsement in pencil not being such an indorsement as the law and custom of merchants recognizes to be sufficient to pass the interest in a bill of exchange, and promissory notes being by the statute 3 and 4 Ann, c. 9, § 1, assignable or indorsable in the same manner as unpaid bills of exchange are according to the custom of merchants. The Lord Chief Justice thought it sufficient, and directed the jury to find a verdict for the plaintiff, reserving liberty to the defendant's counsel to move to enter a nonsuit, if the court should be of opinion that the indorsement of the promissory note in pencil was not a good and valid indorsement. ABBOTT, C. J. There is no authority for saying that where the law requires a contract to be in writing, that writing must be in ink. The passage cited from Lord Coke shows that a deed must be written on paper or parchment, but it does not show that it must be written in ink. That being so, I am of opinion that an indorsement on a bill of exchange may be by writing in pencil. There is not any great danger that our decision will induce individuals to adopt such. a mode of writing in preference to that in general use. The imperfection of this mode of writing, its being so subject to obliteration, and the impossibility of proving it when it is obliterated, will prevent it being generally adopted. There being no authority to show that a contract which the law requires to be in writing should be written in any particular mode, or with any specific material, and the law of merchants requiring only that an indorsement of bills of exchange should be in writing, without specifying the manner with 5 5 See custom stated in Lutwyche, 878. which the writing is to be made, I am of opinion that the indorsement in this case was a sufficient indorsement in writing within the meaning of the law of merchants, and that the property in the bill passed by it to the plaintiff. BAYLEY, J. I think that a writing in pencil is a writing within the meaning of that term at common law, and that it is a writing within the custom of merchants. I cannot see any reason why, when the law requires a contract to be in writing, that contract shall be void if it be written in pencil. If the character of the handwriting were thereby wholly destroyed, so as to be incapable of proof, there might be something in the objection; but it is not thereby destroyed, for, when the writing is in pencil, proof of the character of the handwriting may still be given. I think, therefore, that this is a valid writing at common law, and also that it is an indorsement according to the usage and custom of merchants; for that usage only requires that the indorsement should be in writing, and not that that writing should be made with any specific materials. Holroyd, J., concurred. INDICTMENT for forging an indorsement to a bill of exchange. John Watson & Son drew a bill on Harper, but did not sign it. Harper accepted it, forged the indorsement of John Hunt, and returned it. Accord: Brown v. Butchers, etc., Bank, 6 Hill (N. Y.) 443, post, p. 37; Closson v. Stearns, 4 Vt. 11; Reed v. Roark, 14 Tex. 329. Where an accept. ance of a bill is required by statute to be in writing (Neg. Inst. L., § 220), a telegraphic acceptance satisfies the statute. Garrettson v. North Atchison Bank, 39 Fed. Rep. 163; 47 Fed. Rep. 867; 51 Fed. Rep. 168. A negotiable instrument may be drawn in any language. Re Marseilles Co., L. R. 30 Ch. D. 598.- H. [Signature to a check by a bank depositor by her mark in lead pencil is valid. "Citation of authority is not necessary to show that it is immaterial with what kind of an instrument a signature is made." LADD, J., in Drefahl v. Security Sav. Bk., 132 Iowa 563, 573. It was held in Flanders v. Snare, 37 Pa. Super. Ct. 28, that there is nothing in the Negotiable Instruments Law to prevent the use of a rubber stamp in the indorsement of negotiable paper. "Of course, we are not to be understood as saying that an indorsement made by the use of a rubber stamp, any more than one made in manuscript, proves itself. In either case the maker or acceptor, when called upon to pay by one claiming to be the lawful holder by virtue of such indorsement, may demand proper proof of the genuineness and authenticity of the indorsement." HEAD, J., p. 31. — C.] Watson and Son indorsed it and placed it in bank for collection. They did not at any time sign it as drawers. The following is a copy of the bill: £22 10s. 4d KILMARNOCK, 2 Nov. 1880. One month after date pay to me or order the sum of £22 10s. 4d., that being for value received in machinery. To Mr. J. HARPER, ETC. [Across the face]: Accepted payable at the Union Bank of London. JOHN HARPER. [Indorsed] JOHN HUNT. JOHN WATSON & SON. : Harper was convicted and sentenced, but execution of the sentence was suspended till the decision of the case by the Court for Crown Cases Reserved. LORD COLERIDGE, C. J.-The conviction cannot be sustained. The instrument was not a bill of exchange; it was an inchoate bill of exchange. The point requires no authority, though it has the authority of the cases of McCall v. Taylor (34 L. J. C. P. 365); Stoessiger v. South Eastern Ry. Co. (3 E. & B. 549); Peto v. Reynolds (23 L. J. Ex. 98; 9 Ex. 410; 11 Ex. 418); and Rex v. Pateman (Russ & Ry. 455). STEPHEN, J.-Though I entirely agree with the opinion expressed by my Lord, I cannot help observing that the act of the prisoner has all the effect of a forgery punishable under the statute as a felony; the prisoner could, however, have been indicted, and ought to have been indicted, for forgery at common law. GROVE, HAWKINS and LOPES, JJ., concurred. $ 20 TAYLOR v. DOBBINS. 1 STRANGE (K. B.) 399. — 1720. In case upon a promissory note the declaration ran, that the defendant made a note, et manu sua propria scripsit. Exception was taken, that since the statute he should have said that the defendant signed the note, but the Court held it well enough, because laid to be wrote with his own hand, and there needs no subscription in that case, for it is sufficient his name is in any part of it. I. J. S. promise to pay, is as good as I promise to pay, subscribed J. S. 7 Accord: Tevis v. Young, 1 Metc. (Ky.) 197; Heman v. Francisco, 12 Mo. App. 560.-H. 8 Vide Eliot v. Cowper, 1 Strange, 609. [Accord: Quin v. Sterne, 26 Ga. 223. The courts make a clear distinction between the statutory requirement that an instrument shall be " signed" and the requirement that it shall be "subscribed." -James v. Patten, 6 N. Y. 9.- H.] § 20 BROWN v. BUTCHERS & DROVERS' BANK. 6 HILL (N. Y.) 443. 184. On error from the Superior Court of the city of New York, where the Butchers and Drovers' Bank sued Brown as the indorser of a bill of exchange, and recovered judgment. The indorsement was made with a lead pencil, and in figures, thus, "1. 2. 8." no name being written. Evidence was given strongly tending to show that the figures were in Brown's handwriting, and that he meant they should bind him as indorser; though it also appeared he could write. The court below charged the jury that, if they believed the figures upon the bill were made by Brown, as a substitute for his proper name, intending thereby to bind himself as indorser, he was liable. Exception. The jury found a verdict for the plaintiffs below, on which judgment was rendered, and Brown thereupon brought error. By the Court, NELSON, Ch. J. — It has been expressly decided that an indorsement written in pencil is sufficient; (Geary v. Physic, 5 Barn. & Cress. 234); and also that it may be made by a mark. (George v. Surrey, 1 Mood. & Malk. 516). In a recent case in the K. B. it was held that a mark was a good signing within the statute of frauds; and the court refused to allow an inquiry into the fact whether the party could write, saying that would make no difference. (Baker v. Dening, 8 Adol. & Ellis, 94; and see Harrison v. Harrison, 8 Ves. 186; Addy v. Grix, id. 504.) These cases fully sustain the ruling of the court below. They show, I think, that a person may become bound by any mark or designation he thinks proper to adopt, provided it be used as a substitute for his name, and he intend to bind himself." Judgment affirmed. II. Unconditional promise or order to pay a sum certain in money. 1. A NOTE MUST CONTAIN A PROMISE. § 20 GAY v. ROOKE. 151 MASSACHUSETTS, 115. — 1890. Contract on the following instrument, declared on as a promissory note: MARLBORO', SEPT. 23, 1881. dolls. 5-100 for value received. I. O. U., E. A. Gay, the sum of seventeen JOHN R. ROOKE. Writ dated September 19, 1887. At the trial in the Superior Court, without a jury, before Dewey, J., the only issue was whether the See Rogers v. Coit, 6 Hill, 322, 3. plaintiff was entitled to interest from the date of the instrument, or from that of the writ, the service of which was the only demand made by the plaintiff. The plaintiff asked the judge to rule, as a matter of law, that he was entitled to interest from the date of the instrument. The judge declined so to rule, and ruled that interest could be recovered from the date of the writ only, and found for the plaintiff for $17.05 only; and the plaintiff alleged exceptions. DEVENS, J. — In order to constitute a good promissory note there should be an express promise on the face of the instrument to pay the money. A mere promise implied by law, founded on an acknowledged indebtedness, will not be sufficient. (Story, Prom. Notes, § 14; Brown v. Gilman, 13 Mass. 158.) While such promise need not be expressed in any particular form of words, the language used must be such that the written undertaking to pay may fairly be deduced therefrom. (Commonwealth Ins. Co. v. Whitney, 1 Met. 21.) In this view the instrument sued on cannot be considered a promissory note. It is an acknowledgment of a debt only, and, although from such an acknowledgment a promise to pay may be legally implied, it is an implication from the existence of the debt, and not from any promissory language. Something more than this is necessary to establish a written promise to pay money. It was therefore held in Gray v. Bowden (23 Pick. 282), that a memorandum on the back of a promissory note, in these words, "I acknowledge the within note to be just and due," signed by the maker and attested by a witness, was not a promissory note signed in the presence of an attesting witness within the meaning of the statute of limitations. In England an I. O. U., there being no promise to pay embraced therein, is treated as a due bill only. The cases, which arose principally under the Stamp Act, are very numerous, and they have held that such a paper did not require a stamp, as it was only evidence of a debt. (1 Danl. Neg. Inst. 3d ed. § 36: 1 Randolph Com. Paper, § 88; Fesenmayer v. Adcock, 16 M. & W. 449; Melanotte v. Teasdale, 13 M. & W. 216; Smith v. Smith, 1 F. & F. 539; Gould v. Coombs, 1 C. B. 543; Fisher v. Leslie, 1 Esp. 425; Israel v. Israel, 1 Camp. 499; Childers v. Boulnois, Dowl. & Ry. N. P. 8; Beeching v. Westbrook, 8 M. & W. 411.) While in a few States it has been held otherwise, the law as generally understood in this country is, that, in the absence of any statute, a mere acknowledgment of a debt is not a promissory note, and such is, we think, the law of this Commonwealth. (Gray v. Bowden, 23 Pick. 282; Commonwealth Ins. Co. v. Whitney, 1 Met. 21; Daggett v. Daggett, 124 Mass. 149; Almy v. Winslow, 126 Mass. 342; Carson v. Lucas, 13 B. Mon. (Ky.) 213; Garland v. Scott, 15 La. Ann. 143; Currier v. Lockwood, 40 Conn. 349; Brenzer v. Wight |