Payee v. Maker.

On a note payable by instalments; for the first instalment.

For that the said E, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him or his order, $50 in manner following, viz. $10 on the 19th of March; $10 on the 19th of April; $10 on the 19th of May; $10 on the 19th of June; and the other $10 on the 19th of July then next; yet, though the said 19th day of March has long since elapsed, and though $10, part of the said sum of $50 has become due, and though often requested, the said E has never paid the same &c.

NOTE. Where a note is payable by instalments, and there is a default in the payment of the first instalment, it has been recommended to bring the action for the entire debt, because the plaintiff cannot have a new action. See Beckwith v. Nott, Cro. Jac. 304.

On a note payable by instalments, and if one of those be not paid, the note to be in force for the whole sum. Action is brought for the whole sum, the first instalment not being paid.

For that the said E, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him or order, $90 in manner following, viz. the sum of $9 every quarter day, until the said sum of $90 should be fully discharged; the first payment to be made on &c., or within nine days then next, and so continue quarterly until fully completed; and in default of payment of any or either of the said quarterly payments, or any part thereof, the said whole note to be in full force for the whole of the said $90; and the plaintiff avers, that the said E did not pay to him, the said plaintiff, the first payment of $9, which by the said note was to be paid to him, at or within nine days next after the &c. day of &c. now last past, whereby the said note became, and is in full force for the whole of the said sum of $90, whereof the said E afterwards, viz., on &c., at &c., had notice, &c.

In a note like the above, interest should be calculated on the whole sum remaining due when the action is brought, and not merely on the instalment. 4 Esp. N. P. C. 147.

On a joint and several note, against one.

For that the said D and one E, on &c., at &c., by their promissory note in writing, under their hands, of that date, for value received, jointly and severally, promised the plaintiff to pay him or his order, $100, one month after date,

which said month has long since elapsed; yet, though often requested, the said D and E, or either of them, have not paid the said sum, but they and either of them have wholly refused so to do.

NOTE. Quare of this precedent. On a joint and several note, either promisor may be sued, as if he alone had given the note in his own name. The above form states the note as it really is, and there seems to be no impropriety in it, because it gives an opportunity of introducing in the conclusion, that neither of the promisors had paid the note, which in cases where a payment by either would be sufficient, one would think almost indispensable. See the precedent in Imp. Pl. 429. See Cowp. 432. If there be several drawers of a joint and several note, the acknowledgment of one of them takes it out of the statute of limitations, and it may be given in evidence, even in a separate action against any of the others. Doug. 652.

If a note of hand be, "we promise to pay," and signed by one only, that person may be sued alone, as on a note in the singular number. 1 Bur. 323.

A note of hand beginning, "I promise to pay," signed by several, is a joint and several note. Bayley on Bills, 29.

On a note payable on the contingency of a ship's arrival. For that the said S, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him the sum of $-, three days after the arrival of the ship Ann at said &c.; and the plaintiff avers that the said ship Ann afterwards, viz. on &c., arrived at said &c., viz. at said &c.; of all which said several premises, the said S thereafterwards, viz. on &c., at &c., had notice; yet though said three days have long since elapsed, and though requested, &c.

On a note indorsed for residue, after a payment of part.

For that the said E, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised one A. B. to pay him or his order, the sum of $in three months from the date of said note, which said three months have long since elapsed; and the said A. B., thereafterwards on the same day, indorsed and delivered the said note to one S. T., and the said E, after the said indorsement so made to the said S. T. as aforesaid, viz. on &c., at &c., paid to the said S. T. the sum of $-in part payment of the said note, and the said S. T., thereafterwards on the same day, indorsed the said note, and thereby appointed the residue of the sum of money specified in the said note, then and still unpaid, to be paid to the plaintiff, whereof the said E thereafterwards on the same day had notice, and

thereby became liable, and in consideration thereof, then and there promised the plaintiff to pay him the residue of the said sum, according to the tenor of the said note, and the effect of the said indorsements, so made thereon as aforesaid; yet &c.

On a note payable after the death of a third person.

For that the said D, on &c., at &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him the sum of $, three months after the decease of A B, of &c. Esq., and the plaintiff avers that the said A B, afterwards, viz, on &c., at &c., died, of which the said D thereafterwards, viz., on the same day had notice. Yet, though said three months after the decease of the said A B, have long since elapsed, and though often requested &c.

Payee v. Maker, on a note payable in eight years, interest annually ; for three years interest, principal not due.

For that the said E, at a place called P, to wit, at &c. aforesaid, on &c., by his note under his hand of that date, for value received, promised the said plaintiff, to pay to her or her order, the sum of $10,000, lawful money, in eight years from the said date, with lawful interest for the same until paid, the said interest to be paid yearly, and at the end of each and every year, during said term. Now the said plaintiff saith, that three years of the said term have long since expired, yet the said E, though requested, has never paid the interest of the said sum, nor of any part thereof, for the said three years, nor for any part thereof, but unjustly neglects and refuses so to do. Greenleaf v. Kellogg, 1800. T. PARSONS.

Against inhabitants of a town; on a note signed by their treasurer. Summons the inhabitants of Haverhill, to answer to A A, in a plea of the case, for that, at said H, on &c., one B B, by a certain promissory note of hand of that date, by him made and signed, for value received of the said A A in £90 lawful money, in continental currency, of the value of &c., of our now lawful money, for the use and service of said inhabitants, the said B B, being then and there treasurer of said town of H, promised and obliged himself and his successors in the office of treasurer as aforesaid, in behalf of said inhabitants, to repay to said A A the said sum

of £90, of the value of &c., of our now lawful money, on demand, with lawful interest for the same until paid: the said B B, being then and there agent and treasurer for said inhabitants, and by them duly authorized to make and sign. that note on their behalf; of all which the said inhabitants had notice, and thereby became liable to, and in consideration thereof, then and there promised the said A A to pay him the same sum on demand, with lawful interest as aforesaid until paid; yet, though requested, the said inhabitants have never paid the same, but unjustly neglect and refuse so to do.

Same, as though made by inhabitants themselves.

For that the said inhabitants, on &c., at &c., by their note signed by B, their treasurer, by their order and in their behalf, for value received, promised, &c. [As before.] BRADBURY.

Husband and Wife v. Surviving Promisor, on a note given to wife while single.

For that the said D and one B, then living, but since deceased, at &c., on &c., by their note under their hands of that date, for value received of the said C, then sole, promised the said C, by the name of &c., to pay her, or order, the sum of &c., on demand; yet, though often requested, the said D and B, or either of them, in the lifetime of said B, or since his death, the said D never paid the same to the said C, when sole, nor to the plaintiff, since the intermarriage of the plaintiff and said C, though alike requested, but wholly neglected and refused, and the said D still refuses so to do.

On note given to plaintiff's wife since marriage.

For that the said D, at &c., on &c., by his note under his hand of that date, for value received, promised C, then, and as yet, the wife of the plaintiff, by the name of &c. to pay her the sum of &c. in four months from the date of said note, which are long since past, with lawful interest therefor until paid, which said note the plaintiff afterwards, on the same day, accepted and agreed to, by reason whereof the said D became liable, and in consideration, &c. PARSONS.

Indorsee v. Husband and Wife, on note of wife while sole.

For that the said A, while sole, on &c., at &c., by her note under her hand of that date, for value received, pro

mised one C to pay him, or order, the sum of &c. on demand with interest therefor; and, afterwards, there on the same day, the said C, by his indorsement in writing of the same note under his hand, ordered the contents thereof, then unpaid, to be paid to the plaintiff, of which the said A, then sole, then and there had notice, and thereby became liable, and in consideration thereof then and there promised the plaintiff to pay him that sum, according to the tenor of said note; yet the said A, while sole, and the said A and B, since their intermarriage, though often requested, never paid the same, but wholly neglect and refuse so to do.

Indorsee v. Executor, on note of testator.

For that the said C, in his lifetime, on &c., at &c., by his note under his hand of that date, for value received, promised one B to pay him, or order, the sum of $-, in &c. months from the date of said note, which are long since past; and the said B afterwards, on &c., at &c., by his indorsement of the same note, in writing under his hand, for value received, ordered the contents of said note, then unpaid, to be paid to the plaintiff, according to the tenor thereof, of which the said C, in his lifetime had notice, and thereby became liable, &c.; yet the said C, in his lifetime, and the said A, since the death of said C, have or hath never paid the same, &c.

On conditional note.

For that the said A at &c., on &c., by his note, in writing under his hand, of that date, for value received, promised the plaintiff to pay him, or his order, the sum of $300 in six months from the date of said note, and that he would pay him $200, part thereof, in printing, at the Boston customary price per sheet, and the remaining $100 in cash; and the said A, in and by his note, further promised, that if he should be prevented, by any accident from paying him the said $200, in work, as aforesaid, he would then pay him the said sum in cash, with lawful interest on the said $300 until paid. Now the plaintiff avers, that the said A, though often requested, has never paid the said $200, in work, as abovementioned, nor has he, though alike requested, paid the said sum of $300 in cash, according to his promise, &c. T. PARSONS.

On a note in the alternative, either to pay a sum of money or surrender the body of a person arrested; - 2 Counts.

For that the said B and C, on &c., at &c., by their note,