Lowe v. Murphy , 9 Ga. 338 ( 1851 )

By the Court.

Warner, J.

delivering the opinion.

[1.] If the instrument declared on by the plaintiff is, in con-.temptation of law, a due bill, then it may be declared on as a promissory note. Kemball vs. Huntingdon, 10 Wendell’s Rep. 675. By transposing the words of the instrument, without altering its legal effect, it will read as follows: “ Due Benjamin F. Lowe, for the benefit of B. F. White, four hundred and seventy-five dollars, for his tan yard and stock, purchased of B. F. White, and fifty-three dollars and fifty cents for one note of hand which is said to be lost or mislaid — each amount bearing interest from 1st January, 1845. (Signed,) JOHN A. SCOTT.

“ Sept. 23, 1847.”

The inquiry is, does this paper import an engagement that money shall be paid absolutely? F it does, no matter by what words, it is a good note. Luqueen vs. Prossen, 1 Hill’s N. Y. Rep. 259. In Brewer vs. Brewer, (6 Ga. Rep. 588,) we held the following instrument to be a due bill:

“ I do hereby acknowledge the credit of three hundred and thirty-two dollars and fifty cents, to be due to the estate of Drewry Brewer, deceased. (Signed,) Clare Brewer.

“ August 5th, 1847.”

See also Carey vs. McDougald, 7 Ga. Rep. 85.

We are of the opinion the paper declared on by the plaintiff imports an engagement to pay money, and states also the consideration for that engagement, and is a due bill in contemplation of law, and may be declared on as a promissory note. The amendment offered by the plaintiff to his declaration ought to have been allowed.

Let the judgment of the Court below be reversed.