Gay and Another v Lander
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1281
IN THE COURT OF COMMON PLEAS
S. C. 6 D. & L. 62, 75; 17 L. J. C. P. 281; 12 Jur. 678.
6C. B. 336. BKOWN V, DE WINTON 1281 * [336] brown v. de winton. gay and another v. lander. [S. C. 6 D. & L. 62, 75 ; 17 L. J. C. P. 281 ; 12 Jur. 678.] Although no precise form of words is necessary to constitute a promissory note, still it ought to have all the essentials of a contract. - A note payable to the maker's own order is not per se a negotiable instrument within the 3 & 4 Anne, c. 9, s. 1 : a payee must be expressly named, or must appear by necessary implication. - But, when a note in that form is indorsed in blank, and put in circulation by the maker, it becomes, in effect, a note payable to the bearer. -To describe such an instrument, after indorsement, as a promissory note, and as having been indorsed to the plaintiff, though it may be ! ground of demurrer, is no ground for a motion in arrest of judgment. - Brown v. De Winton. - The declaration stated that the defendant made a promissory note in writing, and thereby promised to pay to the order of him, the defendant, 5001., and indorsed the said note to Smith & Co., who indorsed it to the plaintiff : - Held, that, as against the maker and indorser, this was a valid promissory note payable to Smith & Co. or order; and that, although the count might have been open to a special demurrer, for not setting out correctly the legal effect of the instrument, there was no ground for a motion in arrest of judgment. - Gay v. Lander. These were respectively actions of assumpsit, upon promissory notes made by each of the respective defendants payable to his own order, and indorsed by them respectively. In Brown v. De ffiinion, the first count of the declaration was as follows : - " For that whereas the defendant, on the llth of September, 1845, made his promissory note in writing, and thereby promised to pay to his, the defendant's order, 751., for value received, two months after the date thereof, - which period had elapsed before the commencement of this suit : and the defendant then indorsed the same to the plaintiff, whereof the defendant then had due notice, and then, in consideration of the premises, promised to: pay the amount of the said note to the plaintiff, according to the tenor and effect thereof." There was also a count upon an account stated. [337] The defendant pleaded, except as to the first count, non assumpsit; and, as to the first count, - that he did not make the note,- that he did not indorse it, - and that the note was given in respect of a gambling debt. The cause was tried before Erie, J. at the sittings in London, after Trinity term, 1846. The note, which was stamped with a three-and-sixpenny bill stamp, was in the following form :ò - òò . : "London, 11 Sept., 1845. "Two months after date, I promise to pay to my own order, seventy-five pounds, value received. " lieut. C. L. de winton. "To Sir J. Kirkland & Co., Indorsed- "Lierf. C. L. De Winton, 16th Eegiment." It was objected that this was not a promissory note, either at common law, or within the 4 & 5 Anrie, c. 9, and, consequently, that the defendant was entitled to a verdict upon the issues joined on the second and third pleas. A verdict was found for the plaintiff for the amount of the note and interest, - leave being reserved to the defendant to move to enter a verdict for him, if the court should be of opinion that the note was not negotiable. In Gay v. Lander, the declaration, - which contained one count only, - stated that the defendant, theretofore, to wit, on the 8th of March, 1845, made his promissory note in writing, and thereby promised to pay to the order of him, the defendant, the sum of 5001., for value received, six months after the date thereof, which period had elapsed before the commencement of this suit ; that the defendant then indorsed the said note to certain persons using and trading under the name, style, and firm of Smith & Co. ; and the said persons so [338J using and trading under the name, style, and firm of Smith & Co., by and under the name, style, and firm of Smith & Co., then indorsed the said note to the plainiffs ; and the defendant then, in consideration of the C. P. xiv.- 41 1282 BROWN r. DE WINTQN " 6 C. B. 339. premises, promised the plaintiffs to pay them the amount of the said note, according to the tenor and effect thereof, and of the said indorsements; yet the defendant had disregarded his said promises, and had not paid the said money, or any part thereof, -to the damage, &c. The defendant pleaded,-first, that the said promissory note so indorsed by him the defendant to the said persons trading under the name of Smith & Co., as in the declaration mentioned, was so indorsed and delivered to the said persons trading under the name of Smith & Co., without any value or consideration given by the said persons trading under the name of Smith & Co., and for a special purpose only, to wit, that the said persons trading under the name of Smith & Co., should get the said promissory note discounted for and on behalf of the defendant, and for his use and benefit, and not for the purpose of being negotiated or delivered over by them to any other person or persons whatsoever, excepting for and on account of the special purpose aforesaid; that the said persons trading under the name of Smith & Co. then toqk and received, and from thence until the plaintiffs became possessed of the same as thereinafter mentioned, held the said promissory note for the special purpose aforesaid; that the said persons trading under the name of Smith & Co., in violation of good faith, and contrary to the said special purpose for which they so received and held the said promissory note as aforesaid, theretofore, and whilst they held and had the same in their possession for the special purpose aforesaid, to wit, on the 8th of March, 1845, fraudulently, and without the authority of the defendant, negotiated and parted [339] with the said promissory note, and then indorsed the said note to the plaintiffs ; that the said promissory note was not at any time indorsed to the plaintiffs otherwise than by the said persons trading under the name of Smith & Co. so indorsing the same as aforesaid to the plaintiffs; and that there was not at any time any consideration or value given by the plaintiffs for the said indorsement of the said promissory note to them by the said persons trading under the name of Smith & Co., as in the declaration mentioned,-verification. Secondly, that the said promissory note so indorsed by the defendant, was so indorsed and delivered to the said persons trading under the name of Smith & Co., without any value or consideration given by them for the said indorsement, and for a special purpose only, to wit, that the said persons trading under the name of Smith & Co. should get the said promissory note discounted for and on behalf of the defendant, and for his use and benefit, and not for the purpose of being negotiated or delivered over by them to any other person or persons whatsoever, excepting for and on account of the special purpose aforesaid; that the said persons trading under the name of Smith & Co. then took and received, and from thence until the plaintiffs became possessed of the same .as thereinafter mentioned, held the said promissory note for the special purpose aforesaid; that the said persons trading under the name of Smith & Co., in violation of good faith, and contrary to the said special purpose for which they so received and held the said promissory note as aforesaid, theretofore, and while they held and had the same in their possession for the special purpose aforesaid, to wit, on the 8th of March, 1845, fraudulently, and without the authority of the defendant, negotiated and parted with the said promissory note for their own use and benefit, and then indorsed the said note to the plaintiffs; that the said promissory note [340] was not at any time indorsed to the plaintiffs otherwise than by the said persons trading under the name of Smith & Co. so indorsing the same as aforesaid ; and that the plaintiffs, at the time, when the said note was so indorsed to them as aforesaid by the said persons trading under the name of Smith & Co. as aforesaid, had notice of the premises, and well knew that the said persons trading under the name of Smith & Co. had no power or authority to negotiate or part with the same on their own account,-verification. . Thirdly, that the said promissory note so indorsed by him the defendant as in the declaration mentioned, was indorsed and delivered to the said persons trading under the name of Smith & Co., without any value or consideration given by them for the said indorsement by the defendant, and for a special purpose only, to wit, that the said persons trading under the name of Smith & Co. should get the said promissory note discounted for and on behalf of the defendant, and for his own use and benefit, and not for the purpose of being negotiated or delivered over by them to any other person or persons whatsoever, excepting for and on account of the special purpose aforesaid j that the said persons trading under the name of Smith & Co., then tool? 6C.B.3H. BROWN V. DE WINTON 1283 and received, and from thence until the plaintiffs became possessed of the same as hereinafter mentioned, held the said promissory note for the special purpose aforesaid; that the said persons trading under the name of Smith & Co., in violation of good faith, and contrary to the special purpose for which they so received and held the said promissory note as aforesaid, theretofore, and whilst they held and had the same in their possession for the special purpose aforesaid, to wit, on the 30th of September, 1845, fraudulently, and without the authority of the defendant, negotiated and parted with the said promissory note for their own use and benefit, and then [341] indorsed the...
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McCall v Taylor
...learned judge adverted to a case in this court, the name of which he could not at the moment remember. It was probably Brown v. De Wintun, 6 C. B. 336. It was there held that, although no precise form of words is necessary to constitute a promissory note, still it ought to have all tlhe ess......