Osgood v. Pearsons

70 Mass. 455

Opinion

Thomas, J.

It is quite clear that an action cannot be main tained on this instrument as a promissory note, under the St. of 3 & 4 Anne, c. 9, § 1. Blanckenhagen v. Blundell, 2 B. & Ald, 417. Byles on Bills, (Amer. ed.) 154.

It is equally plain that the instrument is good evidence of debt. There would seem to have been no difficulty, before our practice act, in declaring upon it according to its legal effect, treating the promise to pay either as a promise to pay both. The note might also have been offered in evidence under the money counts. The case of Walrad v. Petrie, 4 Wend. 575, is directly in point. See also Jerome v. Whitney, 7 Johns. 321. Nor do we perceive any difficulty in declaring upon it as a written instrument under the ninth clause of the St. of 1852, c. 312, § 2.

Demurrer overruled.