Stat. 1783, c. 55, s. 1. Kyd, 281. Lowe v. Waller, Str. 1155. Selw. 274. Selw. 277, in nota. Banks v. Colwell, at Spring Assiz. 1788. By statute it is enacted, that all bonds, contracts, mortgages, and assurances whatsoever, made for the payment of any principal or money lent, or covenanted to be lent, upon or for usury, whereupon or whereby there be re served or taken above the rate of six pounds for the forbearance of one hundred pounds for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time, shall be utterly void. This last provision, against usurious contracts, is also copied from an English statute, 12 Ann. st. 2, c. 16. s. 1. And on this statute, 12 Ann. &c. and on the authority of the case on the English statute of gaming, it has been determined, that no action can be maintained against the acceptor of a bill given on an usurious consideration. The court were of opinion, that the words of the statute were too strong not to apply to this case; the word assurances being a general term, comprehending all kinds of securities, notes and bills, as well as bonds. If the indorsee fail in his action against the maker, by reason of the illegality of the consideration, the indorsee may nevertheless sue the indorser on his indorsement; because, as between them it is a new bill, and no inquiry can be made into the original consideration. In cases, where the illegality of the consideration is such as does not fall within the statutes against gaming and usury, the holder cannot be affected with the transaction between the original parties, unless he either had notice, or took the bill after it became due, from a person who had notice of the illegal consideration, for which the bill was given*. But a party taking a bill of exchange or note after it is due, takes it subject to all the equity to which the party from whom he had it is liable. Therefore in an action by the indorsee of a promissory note, payable on demand, against the maker; the defendant was admitted to give evidence that the note had been * See the following cases, Peacock v. Rhodes, Doug. 632, Steers v. Lashley, 6 T. R. 61, and Brown v. Turner, 7 T. R. 630. indorsed to the plaintiff a year and a half afterwards; and Kyd, 283. 3 T. R. 80. So, in this case, it was said by Buller, J. that generally Brown v. Davis, when a note is due, the party receiving it, takes it on the credit of the person who gives it to him So also in this case it was said by Buller, J. that it had never been determined that a bill or note was not negotiable after it was due, but if there were circumstances of fraud in the transaction, and it came into the hands of plaintiff by indorsement, after it became due, he had always left it to the jury, upon the slightest circumstance, to presume that the indorsee was acquainted with the fraud. Taylor v. Mather. 3 T. R. 83, n. 1 Mas, T, R. 1. And it is now settled, that where it appears that the ac- Gold v. Eddy. tual indorsement was made at a period so long after the time set for payment of the note, as to place it in the situation of a discredited note, defendant may go into such evidence as he would have been entitled to, had the action been brought by the original promisseet. III. What bills of exchange or promissory notes are of a negotiable nature. * To this position, Kenyon, J. agreed, with the addition of this circumstance, that it appeared, on the face of the note, to have been dishonoured; or if knowledge could be brought home to the indorsee, that it had been so. Therefore in an action by the indorsee of a promissory note against the maker, where the note appeared to have been noted for non-payment, and indorsed after it became due, the defendant was admitted to shew that the note was paid, as between him and the original payee, from whom the plaintiff received it. Brown v. Davis, 3 T. R. 80. † In this case, the court recognized, as entirely satisfastory to them, the decisions of Buller cited in Brown v. Davis, 3 T. R. 81 + and his reasoning and opinion in the case there reported. 1 Esp. Dig. 21. Taylor v. Dobbins, 1 Stra. 399. Elliot v. Cowper, 1 Stra. 609. Moore v. Vanhute. E. 1 G. 1. C. B. Bull. N. P. 272. 1 Esp. Dig. 21. Beardseley v. Baldwin, 2 Stra. 1151. 1 Esp. Dig. 22. Cook v. Colchan, 2 Stra. 1217. 1 Esp. Dig, 23. Stra. 264, 629. Bills of exchange drawn in the usual form of payable to A. B. or order, were at all times negotiable by the custom of merchants; but promissory notes were first made so by stat. 3 and 4 Ann. c. 9, s. 1. which enacts, that all notes signed by any person, promising to pay to any other person, or order, or bearer, the money mentioned in in such note, shall be assignable over by indorsement as bills of exchange are; and the indorsee may maintain his action on such indorsement. 1. It is sufficient if the note is drawn thus, " I, A. B. promise to pay," &c. without being subscribed A. B. though the words of the statute are signed by such per son. And signing, by making his mark, is a sufficient signing within the statute. 2. The note must be for the payment of money. As a promissory note to pay three hundred pounds to B, or order in three good East-India bonds, is not a negotiable note within the statute. 3. No promissory notes are negotiable but such as are for the payment of money absolutely: For if they depend on a contingency they are not negotiable. Therefore a promise to pay so much money after defendant's marriage, is not a negotiable note; for defendant may never marry, and so the note is contingent. 4. But where notes are to become payable on an event which will certainly happen, and take effect in future, they are then negotiable. As where the note was for payment of money six weeks after the death of defendant's father; this was held a good negotiable note; for the event is certain. 5. No express form of words is necessary to constitute a good and negotiable note, provided it amounts to an absolute promise to pay. As a note promising to be accountable to J. S. or order, or for the debt of another, is negotiable. 1 Stra. 706. So acknowledging to have received certain notes, and to Chadwick v. Allen, be indebted in the balance, which the maker of the note promises to pay, is a good and negotiable note. 6. Bills of exchange must also be for the payment of money absolutely, in order to be negotiable. 1 Esp. Dig. 23. Jocelyn v. Laferre, As where the bill was drawn by an officer on his growing substance; it was adjudged not negotiable, by reason cit. in 2 Stra. 591. of the uncertainty of the fund, on which it was drawn. 7. But where a particular fund is mentioned, if that is 1 Esp. Dig. 24. one that will certainly answer, the bill is negotiable which is drawn on its credit. 2 Stra. 762. As where it was drawn by an officer, " on his quarterly Macleed v. Snee, half pay, to be due from the 24th of June to the 24th of September, by advance ;" this bill was held negotiable; for the half pay is a certain fund, and it is only a direction to the drawee, out of what fund he is to be reimbursed ; but the money is advanced on the credit of the person. 8. A bill of exchange, negotiable at first, may, by the 1 Esp. Dig. 24. indorsement, be restrained from being further negotiable. England, As where the bill was drawn in the usual form of nego- Ancher v. Bank of tiable bills, payable to one Mestue, or order, he sent it to Dougl. 638. the drawee with this indorsement, "the within bill must be credited to the account of Dahl,” Dahl being indebted, at that time, to the drawees. This indorsement was adjudged to restrain the bill from being further negotiable, though drawn in that shape at first, by limiting it to be appropriated to a particular purpose. 9. So a bill of exchange payable to a person only, by 3 wils. 211. name, without the words, or order, is not a negotiable bill. 10. So a bill of exchange or promissory note, being Blake v. Sewell. once paid, ceases to be negotiable. V. Who may make an indorsement. 3 Mas. Rep. 556. An indorsement can be made by the payee only, or the Kyd, 106. person to whom he or his indorsees have transferred it, or some one claiming in the right of some of these parties. Kyd, 106. Carvick v. Vickery, Kyd, 106. Where a bill or note is drawn in favour of two or more in partnership, an indorsement by one will bind both, if the instrument concern their joint trade so where it is in favour of them, or either of them, an indorsement by one is a sufficient transfer, though they be not in partnership. So where a bill drawn by two is made payable to them or Doug. 653. in nota. their order, it would seem from principle that either might transfer without the other; for when two persons join in the same bill, they hold themselves out to the world as partners, and, for that purpose, are to be treated as such; and when a bill goes out into the world, the persons to whom it is negotiated are to collect the state and relation of the parties from the bill itself. If they appear on the bill as partners, it may be of less public detriment to subject them to the inconvenience of being treated as such, than to permit them to deny that they are so. Connor v. Martin, 2 Bl. Com. 434. Kyd, 107. Robinson v. Stone, 3 Wils. 1, 2. Str. 1260. Burr. 1225. T. R. 487. If a bill or note be made or indorsed to a woman while single, and she afterwards marry, the right to indorse it over belongs to her husband, for, by the marriage, he is entitled to all her personal property. But if the husband dies, leaving the note or bill unnegotiated and unpaid, the right of indorsement survives to the wife; for the husband never exerted the power he had of obtaining an exclusive property in it. If a man become bankrupt, the property of bills and notes of which he is the payee, or indorsee, rests in his assignees, and the right to transfer is in them. And if such bankrupt indorse a bill or note after his bankruptcy, and that be discovered before it is paid, the assignees may recover it back from his indorsee in an action of trover; and if the money be received, they may recover the money in an action for so much money paid to their use. If the holder of a bill or note die, the right of indorsement devolves to his personal representatives, his executors, or administrators; and they may indorse it, and their indorsee may maintain an action in the same manner as if |