Ayrey and Another v Fearnsides and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1388
EXCH. OF PLEAS.
S. C. 1 H. & H. 202; 7 L. J. Ex. 288; 2 Jur. 596.
aybey and another v feaknsideh and others. Exch. of Pleas. 18.3S.-Held, that a paper, whereby the defendants promised to pay the plaintiffs, or ordur, the sum of 131., for value received, with interest at. 51. per cent., and all tines according to rule, could not be declared on as a promissory note.-The jury found general damages on a declaration containing a count on the above instrument (as a promissory note), and a count on an account stated, the Court awarded a venire de novo. [S. C. 1 H. & H. 202; 7 L. J. Ex. 288 ; 2 Jur. 59G.] Debt on an! instrument (declared on as a promissory note) whereby the defendants joinjfcly and separately promised to pay to the plaintiffs, or order, the sum of l.'U. on deipand, for value received, with interest at 51. per cent., "and all fines according to rulel" There was also a [169] count on an account stated. The defendant, pleaded to the first count, payment; to the second, nunquam indebitatus ; and at the trial, before the under-sheriff of Yorkshire, the plaintiff had a general verdict. VV. H. Watson having obtained a rule nisi to arrest the judgment, on the ground 4 M. &W. 170. DOE V. MORGAN 1389 that the instrument declared on could not be considered as a promissory note within the statute, hut only as an agreement, for which no consideration was shewn in the declaration. Wightman shewed cause. The words, "and all fines according to rule," are altogether insensible, and may be rejected as surplusage; their presence, therefore, does not vitiate the instrument, which, in all other respects, is a complete promissory note. It was certainly held in Smith v. Nightingale (2 Stark, N". P. C. 375), (which appears (jo be the nearest case to the present), that an instrument whereby the party promised to pay a sum certain, "and also all other sums that might be due," was not a promissory note within the statute. But there, the last words, although not capable of any definite construction, were not so insensible as that they could be rejected as surplusage, since they shewed that some more money was due, only they did not specify the amount with sufficient precision. But here, the words do not import any promise to pay money ; and there is nothing to shew what they have reference to, or what is the nature of the fines spoken of. Besides, the instrument must be either a...
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