or contingency, the instrument is not, except in certain cases as to the stamp duties, a bill or note; and if it is not a bill or note ab initio, no subsequent (23) event can make it so.

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

(23) See Colehan v. Cooke, Willes 393. and Hill v. Halford, post 11. and Blankenhagen v. Blundell, post.

[Coolidge sued Ruggles on a note originally given to Skinner, expressed to be payable to bearer, "provided the ship Mary arrived at an European port of discharge free from capture and condemnation by the British." Parker C. J. delivered the opinion of the Court. "We are

all of opinion that the written promise declared on is not negotiable in its nature, so that an action may be maintained on it by the name of the assignee, on account of the contingency, on which the payment is made to depend." Coolidge v. Ruggles 15 Mass. R. 387.

A promise to pay a corporation a certain sum upon every share of stock subscribed for by the promiser, "in such manner and proportion, and at such time and place, as shall be determined by the President, Directors, and Co." is not a promissory note within the statute, on account of the contingency. Union Turnp. Co. v. Jenkins, 1 Cain. R. 381.

See Atkinson v. Manks, ante, 6.]

(24) Kingston v. Long, B. R. M. 25 Geo. III. The Plaintiff brought an action as Endorsee 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 71l. 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 error 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. 50%. 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 order 50l. with in"terest, 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

by a particular 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) growing subsistence, or (30) fifth payment when due, or out of (31) money when receiv

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 nonsuit was made absolute.

(27) Roberts v. Peake, Burr. 323. The plaintiff as endorsee of a note sued one of the makers; the instrument was in these words: "We promise to pay A. B. 116. 11s. value received, on the death of "George Henshaw, provided he leaves either of 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 aud 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, inasmuch 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 14l. 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.

(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 321. 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 this 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

ed, is no bill or note on account of the uncertainty whether the subsistence or payment will become due, or the money be received.

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.

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 memo

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 1945l. out of the money "in your hands belonging to the proprietors of the Devonshire mines, "being part of the consideration money for the purchase of the manor "of West Buckland." 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. [See Atkinson v. Manks, ante, 6.]

(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. [The endorsee sued the maker of the following note. "Trenton, Oct. 29, 1806. This may certify that I do agree to pay unto Solomon Stevens or order forty dollars by the 20th of May, or when he completes the building according to contract." In the Common Pleas the court thought the note payable on a contingency, and so not negotiable, and directed a verdict for the defendant. On Error the Supreme Court “held the note payable absolutely at a day certain," and ordered a new trial. Stevens v. Blunt, 7 Mass. R. 240. The reasons of this decision are not stated by the Reporter.]

randum written upon it, stating that it is taken for (35) securing the payment of all such balances 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.

(35) Leeds & al. v. Lancashire, 2. Camp. N. P. C. 205. The defendant, Marriott, and Ball gave a joint and several promisory 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. Marriott may happen to owe to Thos. Leeds and "Co. not extending farther than the within named sum of 2001. 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 mercantile 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.

(36) Hartley v. Wilkinson, 4 Camp. 127. 4 Maule 25. A note was made payable to Foster or order, for 251. “being the amount of the pur"chase-money for a quantity of fir belonging to Mr. Hartley." Before the note was signed, this memorandum was endorsed upon it: "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 endorsee 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, aud 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 £200 in three draughts, "by W. and B. Williamson, dated as under, payable to us W. Bennett "and S. M. (the defendants) on J. and J Williamson, which we promise "to pay unto the said J. and J. Williamson, with interest. As witness "our hands this 26th day of August, 1802.

“August 26, 1 draught at 2 months £120

1 do.
1 do.

30

50

£200

(Signed by the defendants.)

For the payment of the money depends upon the draughts being honoured.

So an order from the (38) owner of a ship to the freighter to pay money on account of freight is no bill, because the quantum due for freight may be open to litigation, but such an order from the freighter (39) is, because it is an admission that so much at least is due.

And an order to pay money as (40) the drawer's quarter's half-pay by advance before the pay will be due, is a good bill, because it will be payable though the half-pay shall never become due.

So a note to pay a sum of money, (41) being a portion of a value as under deposited in security for the payment hereof ac

Lord Ellenborough held that this was not a promissory note. And said there can be no doubt that the money was not payable immediately, and that it was not to be paid at all, unless the draughts were honoured. The plaintiffs were nonsuited.

(38) Banbury v. Lisset, Str. 1211, Gibson drew on the defendants in favour of the plaintiff "on account of freight of the galley Veale, Ed"ward Champion, and this order shall be your sufficient discharge for "the same." The action was brought against the defendants as acceptors, and they contended it was not a bill of exchange, because it was only payable out of a particular fund; and Lee C. J. was of that opinion, but he left the point to the jury, who found for the defendants on another ground.

(39) Pierson v. Dunlop, Cowp. 571. M'Lintot freighted a ship of which Nichol was captain, and Pierson owner, and being unable to pay the freight, drew upon Dunlop and Co. in favour of Nichol on account of freight: Pierson afterwards sued Dunlop and Co. as acceptors, and though other objections were taken, it was never insisted that this was payable out of a particular fund.

(40) Macleod v. Snee, Lord Raym. 1481. Str. 762. 1 Barnard. 12. Macleod was sued in the Common Pleas as acceptor of a bill of exchange drawn by Dundas and endorsed to the plaintiff, dated 25th of May, 1724, by which Dundas required him one month after date "to pay £9 10s. as his (Dundas's) quarter's half-pay from the 24th June, "1724, to 25th September following, by advance," and obtained judgment. Macleod brought a writ of error, and insisted that this was similar to the cases of Jocelin v. Laserre, and Jenney v. Herle, but the whole court was of a contrary opinion; for per cur. this bill was not payable upon a contingency, nor out of a particular fund, but is made payable at all events, and drawn upon the general credit of the drawer, and not out of the half-pay, for it is payable as soon as the quarter begins, and the half-pay was not to be due till three months afterwards.

(41) Haussoullier v. Hartsink, 7 Term. Rep. 733. The defendant issued two notes upon a deposit by one Richardson: one payable to J. S. or bearer, for £25, "being a portion of a value as under deposited in "security for payment hereof according to the receipt in our hands," and specifying the particulars of the deposit: the other, payable to J. S.