burrow roberts versus peak Tuesday that may note of hand with a proviso be not  a negotiable note m g Rotlo Lord commissioner Wilmot absent in chancery this  be a special case reserve at nisi prius at guildhall on a trial there before  the late ld Ch I rider it be a action upon a promissory note bring by the  endorsee against one defendant only though the note import upon the face of it  to have be make by two person and the declaration be upon the note as if it  have be a absolute one Payable on the death of a person name in it whereas it  appear upon the face of it to have be give upon two several condition for the  note when give in evidence come out to be thus we name the defendant peak and  another person promise to pay to a b a will value receive on the death of  George Hindshaw provide he leaves either of we sufficient to pay the say sum  or if we shall be otherwise able to pay it sign by peak only and yet it be lie  in the declaration mere as a promissory note absolute and in all event Payable  on the death of g h Mr t clarke of Lincoln Innpro quer the two question upon  this case be saint whether this be a negotiable note d whether this note give  in evidence support the declaration which be upon a absolute note Payable on  the death of g h first pointThere can be no doubt but that if the note give in  evidence have not have the proviso add to it but have mere be make Payable on  the death of George Henshaw it have be a good negotiable promissory note  within the statute of Ann c burrow for the contingency of the death of g h be  not such a uncertain contingency as that the event may possible or probable  never happen and so the note may perhaps never become Payable but it be a  event certain and necessary and no otherwise nor in any other respect  uncertain than mere as to the particular time when it will happen so that it  be no more than the ordinary case of a promissory note Payable at a future day  v ante goss v Nelson on a note Payable when defendant shall come to age  specify when that be to be a it must have be Payable to a b or order though  not so state otherwise this action by the endorsee can not have be maintain  burrow er p and to prove this doctrine and that this be a negotiable note he  cite strange the case of cook v Coleham full in point be to pay c within six  week after the defendant father death strange the case of Andrews v franklin  still strong be to pay c within two month after such a ship shall be pay off  then as to the proviso or condition it be make absolute Payable on George  Henshaws death a event which will certain happen therefore the proviso be  repugnant to the body of the note and he endeavour to show a resemblance  between this case and that in salk the case of well v Tregusan and the case in  e and brook obligation SC abridge second pointThe note produce in evidence  will support the declaration saint objection be that the note be only lie as  the defendant several note whereas it import upon the face of it to be make by  two person joint answer perhaps one only sign it or if the other do also sign  it it be nevertheless equal the note of the defendant it be lie and must be  plead accord to its legal operation strange the case of butler v Malissey be  most strict in point d objection that this be lie as a absolute note without  mention the two condition of be Payable if he shall be able or if Henshaw  shall leave either of they sufficient to pay it AnswerBut I say that this note  produce in evidence which contain these two condition will sufficient support  the declaration in attempt to support this assertion he mention Mod the case  of Robert v Harnage salk SC e and strange the case of butler v Malissey before  mention burrow Mr Norton for the defendant be about to speak but Lord  Mansfield stop he and say I fancy you will hardly argue this meaning that it  be sufficient clear on Mr Norton side of the question Mr NortonThis be a  action bring by the endorsee and be under very particular circumstance I agree  that a note in the name of two and import to be make by two person may be  actual sign by one only and will be good also that a note may be declare upon  accord to its legal operation as to the restIf the court be clear he say he  will not trouble they Lord MansfieldI be very clear this note be Payable upon  a contingency but it be not a absolute note what will it signify to have put  in all these contingency if the party be absolute and at all event bind to pay  it upon the death of George Henshaw most manifest it be not intend that he  shall be bind to pay itupon George Henshaws death at all event therefore this  be not a negotiable note for a note Payable upon a uncertain contingency be  not a negotiable note Mr just denison concur a note Payable eventual upon a  uncertain contingency can never be a negotiable note and if it have be so yet  there ought to have be a averment that George Henshaw do leave one of they  sufficient to pay it or that the defendant be otherwise able to pay it and  indeed this show plain that it be not a negotiable note within the meaning of  the Act of parliament which mean and intend a absolute note Payable at all  event and I think too that it be a variance in the declaration from the note  itself for want of set out these condition it ought to have be set out as it  real be burrow but indeed one of these point depend upon the other and I think  this note be only eventual and conditional Payable and by no mean absolute and  at all event Mr just foster concur both as to the variance and also that it be  not a negotiable note as be Payable eventual and not absolute per cur  judgement for the defendant as upon a nonsuit burrow er p