
    George W. and Ishiel Read vs. William McNulty.
    
      Promissory Notes.
    
    A promise, in writing, to pay a certain sum of money to A., or order, at a certain time and place, “ with exchange or New York,” is not a promissory note within the statute of Anne.
    A promissory note must be for the payment of a definite sum of money, or a sum, which, if not defined, may be ascertained by the law alone, without resort to extrinsic circumstances.
    BEFORE WITHERS, J., AT GEORGETOWN, SPRING TERM, 1859.
    Assumpsit on sundry instruments declared on as promissory notes simply. The instruments were promises to pay money to the plaintiffs, or order, at the Bank of Georgetown, for value received, “with exchange on New York,” and were executed in the city of New York.
    His Honor held that the papers produced were not promissory notes, and ordered a nonsuit.
    The plaintiffs appealed, and now moved this Court to set aside the order for nonsuit.
    
      Wilson, Simonton, for appellants,
    cited Edw. on Bills, 72.
    
      B. Dozier, contra.
    A written promise, to be a promissory note, must be for a fixed and certain sum, and not for a variable amount. Therefore, if it be for a certain sum of money, with all other sums that may be due to the payee, it is not a valid promissory note, even for the sum which it specifies. Story on Notes, sec. 20 and notes; Story on Bills, sec. 42; Smith vs. Nightingale, 2 Stark. R., 375; Strange’s Reports, 1271. So a paper, whereby the defendant promised to pay plaintiff or order the sum of thirteen pounds for-value received with interest at five pounds per cent. “ and all fines according to the rule," cannot be declared on as a promissory note. Byles on Bills, m. p., 70 and 71, and notes. So a paper, whereby the defendant promises to pay a sum certain at a certain time, “ current rate of exchange to he added," can not be declared upon as a promissory note. Philadelphia Bank vs. Newkirk, 2 Miles, 442. This last case is the very case before the Court. Indeed, the principle is as old as commercial law, and has frequently been recognized in our own Courts: vide Barnes vs. Gorman, 9 Rich., 297 ; Wallace vs. Dyson, 1 Sp., 127.
   The opinion of the Court was delivered by

Johnston, J.

Though the instruments, if properly declared on, might have been supported as common law instruments, it was error to declare on them as promissory notes under the statute of Anne.

A promise, under that statute, must be an engagement to pay a definite sum of money; or a sum, which if not defined, may be ascertained, by the law alone, without resort to extrinsic .circumstances. With regard to a promise of the former character, there can be no difficulty. It is only in relation to promises of the latter description, that any doubt can arise. A man may engage to pay one thousand dollars with interest from the date: or he may bind himself to pay the interest of one thousand dollars, without more. These would be good promissory notes: because the law comes in and fixes the interest, and thus ascertains the amount to be paid as clearly as if it had been expressed eo nomine et in numero: and the sum to be paid cannot be mistaken or varied any more than if it had been thus expressed. The promise is fixed and absolute. But where terms are added obliging the party to pay “ with exchange on New York,” which is not constantly fixed by law, but fluctuates from day to day, with the changes of commerce: this, if the instrument be supported as a note of hand, is equivalent to saying, that that is a good note of hand which imports a promise to pay one sum to-day and another to-morrow: a thing incompatible with the character of a commercial paper.

It is ordered that the motion be refused; and the appeal be dismissed.

O’Neall, C. J., concurred.

Motion dismissed.  