Thus an order or promise to pay money provided (24) the terms mentioned in certain letters shall be complied with, provided (25) I. S. shall not be surrendered to prison within a limited time, provided (26) I. S. shall not pay the money by a particular

The

(24) Kingston v. Long, B. R. M. 25 Geo. III. Plaintiff brought an action as Indorsee against the Defendant, as acceptor, upon an order importing to be payable, provided the terms mentioned in certain letters written by the drawer were complied with, and the court held clearly that the plaintiff could not recover, though the acceptance admitted a compliance with the terms, for the order was no bill, until after such compliance, and if it were not a bill when drawn, it could not afterwards become one.

(25) Smith v. Boheme, 3 Lord Raym. 67. cit. Lord Raym. 1362. 1396. Action by payee against the makers upon a note promising to pay plaintiff or order on demand 717. 12s. 10d. or to surrender the body of Samuel Boheme in an action brought against him by plaintiff. Verdict for the plaintiff and judgment; and on or brought in the King's Bench, the court held that this was not a note within the statute, because the money was not absolutely payable, but depended upon the contingency whether the defendants should surrender Samuel Boheme to prison; and the judgment was reversed 9th of June, 1724.

(26) Appleby v. Biddulph. cit. 8 Mod. 363. 4 Vin. 240—pl. 16. An action was brought on this note, "I promise to pay to "T. M. 50l. if my brother doth not pay it within six weeks;" and after verdict for the plaintiff, the court arrested the judgment, because the maker was only to pay it on a contingency.

Ferris v. Bond. B. R. Trin. 2. Geo. 4. A note was in these words, "I John Connor, promise to pay John Ferris or his or"der, 50l. with interest, at six months' notice, dated 24th of "June, 1808. (Signed,) I Connor. Or else Henry Bond." In an action upon this against Bond, the question was reserved whether this was as to Bond, a note within the statute; and the court after argument held it was not, because Bond's engagement only was to pay if Connor did not; and a rule for a non

day, provided (27) I. S. shall leave me sufficient, or I shall otherwise be able to pay it, or when I. S. (28) shall marry, is no bill or note on account of the contingency to which the payment is subjected. An order or promise to pay out of my (29) grow. ing subsistence, or (30) fifth payment when due,

(27) Roberts v. Peake, Burr. 323. The plaintiff as indorsee of a note sued one of the makers; the instrument was in these words: "We promise to pay A. B. 1167. 11s. value received on "the death of George Henshaw, provided he leaves either of cr us sufficient to pay the said sum, or if we shall be otherwise "able to pay it ;" and upon a case reserved, the court held it was not a negotiable note, because it was payable eventually and conditionally only, and not absolutely and at all events, and a nonsuit was entered. See Williamson v. Bennett, post.

(28) Beardsley v. Baldwin, Str. 1151. A note to pay money within so many days after the defendant should marry, was (on consideration) held not to be a negotiable note; and in Pearson v. Garrett. Comb. 227. and 4 Mod. 242. (which was before the statute,) an action having been brought upon a note by which the defendant promised to pay the plaintiff sixty guineas if he (the plaintiff) should be married within two months, the court inclined against the note, because it was to pay money on a mere contingency, and judgment was given on demurrer for the defendant.

(29) Jocelin v. Laserre, Fort. 281. 10 Mod. 294. 316. Evans drew upon Jocelin, and required him to pay Laserre 77. a month out of Evans's growing subsistence. Laserre sued Jocelin, and had judgment, but upon a writ of error that judgment was reversed, because this draught was not a good bill of exchange, in as much as it would not have been payable, had Evans died, or had his subsistence been taken away.

(30) Haydock v. Linch, Lord Raym. 1563. Rogers drew upon Linch and requested him to pay Haydock 147. 3s. out of the fifth payment when it should become due, and it should be allowed by Rogers. Linch accepted the draught, and Haydock sued him, but the court on demurrer to the declaration held this was no bill of exchange, and gave judgment for the defendant.

or out of (31) money when received, is no bill or note on account of the uncertainty whether the subsistence or payment will become due, or the be received.

money

So an order to pay a sum out of (32) rents or (33) other money in the hands of the person to whom it is addressed is no bill, because he may not have rent or other money in his hands sufficient to discharge it.

(31) Dawkes v. Lord Deloraine, Blackst. 782. 3 Wils. 207. A draught was in these words: "8th of January, 1768, Seven weeks after date, pay Mrs. Dawkes, 32l. 17s. out of W. Steward's money as soon as you shall receive it, for your humble servant, Deloraine. To Timothy Brecknock, Esq." Brecknock accepted the bill, but it not being paid, Mrs. Dawkes brought an action upon it, against Lord Deloraine, who pleaded that Brecknock had not received W. Steward's money, and upon demurrer to his plea, insisted that this was not a bill of exchange. The court after argument, held the objection good; because it was payable out of a particular fund, and on an event which was future and contingent, viz. the receipt of W. Steward's money, whereas a bill ought to be subject to no event or contingency, except the failure of the general personal credit of the persons drawing or negotiating it. In Wilson, 262. is a report from hearsay of a determination that a promise to pay a sum of money, on the receipt of the Payee's wages due from a ship in government service, was a good note; but that may perhaps be questioned, because the maker might never receive the wages.

(32) Lord Raym. 1362. Str. 592. Fort. 282.

(33) Jenny v. Herle, Lord Raym. 1361. 8 Mod. 265. Str. 591. Herle sued Jenny upon a bill drawn by him upon Pratt, and payable to Herle to this effect: "Sir, you are to pay Mr. Herle "1945. out of the money in your hands belonging to the pro"prietors of the Devonshire mines, being part of the consideration "money for the purchase of the manor of West Buckland."

So a promise to pay (34) on the sale or produce immediately when sold, of the White Hart inn, St. Albans, and the goods, &c. is no note: although it be averred in the declaration upon such promise that the White Hart and goods were sold before the action was commenced.

So an instrument in the form of a note, but with a memorandum written upon it, stating that it is taken for (35) securing the payment of all such ba

Herle had judgment in the Common Pleas, but upon a writ of error, the court of King's Bench held this was no bill of exchange, because it was only payable out of a particular fund supposed to be in Pratt's hands, and the judgment was accordingly reversed.

(34) Hill v. Halford and another in Error. 2 B. and P. 413. The defendants in Error sued Hill as maker of a note, thereby promising to pay them 1907. " on the sale or produce, immediately when sold, of the White Hart, St. Albans, Herts, and the goods, &c. value received." The declaration averred a sale of the inn and goods before the commencement of the action. After judgment in K. B. by default, writ of inquiry executed, and general damages recovered, Hill brought a writ of error in the Exchequer Chamber, and the court held that this promise could not be declared on as a note, and therefore reversed the judgment.

(35) Leeds & al. v. Lancashire. 2. Camp. N. P. C. 205. The defendant, Marriott, and Ball gave a joint and several promissory note to the plaintiffs for 2007. No time for payment was mentioned in the note. On the back was written, "The within "note is taken for security of all such balances as Jas. Mar"riott may happen to owe to Thos. Leeds and Co. not extend"ing farther than the within named sum of 2007. but this note "to be in force for six months, and no money liable to be called "for sooner in any case." This memorandum was written before the note was signed by the defendant or Ball. It appeared in an action upon this note, that in the course of mercanti le

lances as shall be due from one of the makers to the payee, to the extent of the sum mentioned therein, or that if any dispute shall arise respecting the subject which is the consideration for it, it shall be void, is no note. (36)

So an instrument acknowledging the receipt of draughts for the payment of money, and promising to pay the money specified in the draughts, is (37) not a promissory note. For the payment of the money depends upon the draughts being ho

noured.

dealings, Marriott had become indebted to the plaintiffs, and that on their refusing to deal with him any longer without some guarantee, the above instrument, which the makers represented to be a note, was given. It had a note stamp.-Lord Ellenborough held that as between the original parties it was an agreement, and not a note, and therefore nonsuited the plaintiffs.

it:

(36) Hartley v. Wilkinson, 4 Camp. 127. 4 Maule 25. A note was made payable to Foster or order, for 25l. “being the "amount of the purchase-money for a quantity of fir belong❝ing to Mr. Hartley." Before the note was signed, this memorandum was indorsed upon "This note is given on condition "that if any dispute shall arise between Mr. Hartley and Lady "Wray respecting the fir, this note to be void." In an action upon this note by indorsee against the maker, Lord Ellenborough thought it not a note within the statute, because its payment depended upon there being no dispute between Mr. Hartley and Lady Wray, and he nonsuited the plaintiff. On a motion for a new trial, the court agreed with him, and refused a rule.

(37) Williamson & al. v. Bennett & al., 2 Campb. N. P. C. 417. The defendants were sued upon the following instrument, which was stamped and declared upon as a promissory note, "Borrowed and received of J. and J. Williamson (the plaintiffs) "the sum of 2001. in three draughts, by W. and B. William

C