definition, - and the definition is nothing less than a rule of law, which requires a promise, is not clearly determined. It is generally laid down that the promise must be express; hence that the mere fact that a debt is acknowledged is not enough, for that would but raise an implied promise. For example: 'Due C & B $ 17.14' is not, it seems, a promissory note, for want of an express promise to pay.1 But to say that a promise must be express is not to say that the word 'promise' must be used; a promise is express when either the word 'promise,' or any equivalent word or expression, is used. What is the equivalent of 'promise'? That is the difficult question difficult so far at least as principle is concerned, for the equivalency is often arbitrary. Thus: Setting any certain time for payment in express terms appears to be accepted as an equivalent; and this even though. the words of time are 'on demand.' For example: ‘Due JA $94.91 on demand' is a promissory note; it being deemed an express promise to pay.2 The use of words of negotiability is also an equivalent. For example: 'Due R, or bearer, $200.26.' This on like ground is a promissory note.3 The use of the words 'for value received' is held insufficient. For example: 'Due C & B $17.14, value received,' is not a promissory note; the words 'value received' being deemed not an equivalent of 'promise.' And so it has been held of the words 'to be accountable' in an instrument such as this: 'I have received the sum of £20 which I borrowed of you, and I have to be accountable for the said sum with interest.' 5 1 See Currier v. Lockwood, 40 Conn. 349. 2 Smith v. Allen, 5 Day, 337; Kimball v. Huntington, 10 Wend. 675. 8 Russell v. Whipple, 2 Cowen, 536. * Currier v. Lockwood, 40 Conn. 349; two judges dissenting. 5 Horne v. Redfearn, 4 Bing. N. C. 433. See White v. North, 3 Ex. 689, 690. To be accountable' was deemed to mean that credit would When an equivalent of 'promise' is used, it matters not how the acknowledgment of debt is made. The foregoing would be examples of what are commonly called 'due bills' (with an actual promise). Another way in which the acknowledgment is sometimes made, oftener in England than in this country, but sometimes here, is by what is called from the letters used an 'IOU.' For example: 'IOU £20 to be paid on the 22d inst.' is a promissory note. Again: 'S has deposited in the State Bank $1000, payable to himself on return of this certificate' is a good promissory note, though a certificate of deposit." It is no more necessary in the case of a bill of exchange that the word 'order' be used than that the word 'promise' be used in a promissory note. Any equivalent word or expression will satisfy the definition; but it seems here that the law does not give such loose rein to interpretation as we have just seen in regard to the word 'promise.' That is, the equivalent word or expression is to be a real equivalent, in the common acceptation. Still it is not necessary that the words, literally taken, should be imperative; the language may be that of courtesy and politeness in form, as often it is, and yet be imperative in the eye of the law. For example: 'Please let the bearer have $50. I will arrange it with you this noon' is a good bill of exchange, as containing an 'order' to pay. Again: 'Mr. B will oblige Mr. A by paying C or order $100' would be a good bill on the same footing. A little less however might be fatal. For example: 'Please let bearer have £7, and place it to my account, and you will much be given in account and the balance paid. But see Miller v. Austin, 13 How. 218. 1 Brooks v. Elkins, 2 Mees. & W. 74. oblige me' is deemed not a bill of exchange for want of an 'order' or the equivalent.1 Again: 'We hereby authorize you to pay on our account to the order of G £6000' at certain times, in stated instalments, is not a bill of exchange, for the same reason.2 § 2. THE PAYEE. 'To pay to a certain person, or to the order of a certain person, or to bearer.' The payee must be a person certain, that is, existing, and must be ascertainable at the execution of the instrument unless it is payable to bearer. But though the paper be not payable to bearer, the person need not be ascertained or identified on the instrument; enough that he is so referred to as to be ascertainable by evidence ab extra. For example: 'Pay to the executor of A, deceased,' contains a good designation of the payee of the bill, though the description requires evidence from without to identify the person intended. Indeed, a mistake in the name, where a name of the payee is given, may be made good by evidence.* The definition is satisfied by the use of any mercantile phrase in place of the name of a payee, so long as no fictitious person is designated. For example: Pay to bills payable or order' is a good designation of the payee; the meaning being that the instrument is payable to the person to whom the 'bills' are 'payable,' that is, ordinarily to the drawer. The rule requiring the payee to be a real existing person is in England statutory, as is the whole law of bills and notes; but the statute probably expresses the rule of the law merchant on the subject. In some states, by statute, 1 Little v. Slackford, Moody & M. 171. Sed quære. 2 Hamilton v. Spottiswoode, 4 Ex. 200. 3 Adams v. King, 16 Ill. 169. Jacobs v. Benson, 39 Maine, 132. a bill payable to an obviously fictitious person may be treated as payable to bearer, that is, to a real person. Such is the law of England also.1 Perhaps because the law of bills and notes is derived from custom, the rule in regard to the payee is held to mean that the instrument cannot be made payable to either of two different persons. As a matter of fact, it would be contrary to the custom of merchants to execute paper in that way. But whatever the reason, the law does not permit such a designation of the payee, though the instrument might still be good as evidence of debt. For example: Good to A or B for $181.80, value received,' is not a promissory note for want of proper desig nation of the payee, though it may be declared upon and used as evidence of debt (in a suit against A and B jointly). No such rule, it may be noticed, applies to the contract of maker. 6 § 3. MONEY. That these instruments must be payable in money has always been held essential, and the custom of merchants to that effect has received the sanction of statute, -the statutes merely expressing the force of the custom. Thus in England, the statute of Anne already referred to, by which promissory notes were adopted into the law, refers in terms to promises to pay money;' and the same word is used in the similar American statutes. 1 See Vagliano v. Bank of England, 1891, A. C. 107. 2 Osgood v. Pearsons, 4 Gray, 455, citing Blanckenhagen v. Blundell, 2 B. & Ald. 417. See also Carpenter v. Farnsworth, 106 Mass. 561. But see Westgate v. Healy, 4 R. I. 523. 8 We, or either of us,' is not an uncommon form of promise in a note; it is perfectly good. But compare Ferris v. Bond, 4 Barn. & Ald. 679, which, however, is consistent with the text. Whether a bill or cheque could be drawn by 'A or B' may be doubted. By 'money' is meant, in strictness, that which by law is tenderable for debt, that is, assuming that no provision is made for payment in anything else. If the instrument is not payable in money, or in what the courts judicially know to be equivalent to money, it is not an instrument of the law merchant. For example: We promise to pay A or order $1000 in cotton' is not a promissory note.1 Again: 'Pay to A or order £1000 in good East India bonds' is not a bill of exchange (or a cheque). Again: 'I promise to pay A or order $140 in carpenter's work' is not a promissory note. Again: 'Pay A or order $1000 in current funds' or 'in currency' is by some courts deemed not a bill (or a cheque).1 Again: We promise to pay to the order of A, twelve months after date, in Buffalo, N. Y., $2500, in Canada money,' being a New York contract, is not, it is held, a promissory note, because it is not payable in the money of this country or in what the court can judicially know to be the equivalent." The rule itself is accepted by all courts; but the courts have not been agreed in applying it, as cases referred to in 1 Auerbach v. Pritchett, 58 Ala. 451. 2 Buller, N. P. 272; Chalmers, Bills, 13 (Benjamin). 8 Quinby v. Merritt, 11 Humph. 439. 4 Wright v. Hart, 44 Penn. St. 454. But see White v. Richmond, 16 Ohio, 5; Klauber v. Biggerstaff, 47 Wis. 551. See Frank v. Wessels, 64 N. Y. 155. It has very often been held that instruments payable in current bank notes are not payable in money. See the cases just cited and, among others, Little v. Phenix Bank, 7 Hill, 359, affirming 2 Hill, 425; McDowell v. Keller, 4 Cold. 258; Irvine v. Lowry, 14 Peters, 293. In Graham v. Adams, 5 Ark. 261, it was held that a note or bond payable ‘in good current money of the State' was payable in gold and silver. To the same effect, Cockrill v. Kirkpatrick, 9 Mo. 688. Secus of a promise to pay 'in Arkansas money of the Fayetteville Branch.' Hawkins v. Watkins, 5 Ark. 481. Further, see the cases cited in Thompson v. Sloan, 23 Wend. 71; L. C. 1. 5 Thompson v. Sloan, 23 Wend. 71; L. C. 1. |