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an indebitatus affumpfit for money laid out for the ufe of the defendant And the principal queftion was, whether the plaintiffs had ufed due diligence in applying to Moore for the money. Holt, chief justice, held "That goldsmiths' bills were governed by the fame laws and cuftoms as other "bills of exchange; and every indorfement is a new bill: And fo long as "a bill is in agitation, (circulation) and fuch indorsements are made, "all the indorfers and every of them are liable as a new drawer. That "by the law generally, every indorfer is liable as the first drawer, and can "not be discharged without an actual payment; and is not discharged "by the acceptance (receipt) of the bill by the indorfee; but by the "custom this is reftrained, viz. the acceptance (receipt) is intended to "be upon this agreement, fc. that the indorfee will receive it of the "first drawer if he can, and if he can not, then that the indorfer "will answer it; as if the firft drawer be infolvent at the time of the "indorsement, or upon demand refufes to pay it, or cannot be found. "And the indorfer is not discharged without actual payment, until "there be fome neglect or default in the indorfee, as if he does not "endeavour to receive it in convenient time, and then the first "drawer becomes infolvent." "He left it to the jury to confider, "whether the time in this cafe were convenient time or not; and if "the plaintiff had convenient time to receive his money, then to find "for the defendant, otherwise for the plaintiff. And they upon con"sideration found for the plaintiff; upon which the plaintiff prayed to "take the verdict upon the indebitatus affumpfit. Et per chief justice, "You can not take the verdict upon any part of the declaration but "that to which evidence was given, and here it will be good if found upor "the bills of exchange; but if the evidence be applicable to any other part "of the declaration, you make take it upon any fuch part to which the " evidence is applicable. And becaufe Zouch had fworn that he re"ceived the benefit of, and had been satisfied with the bill he took of "the plaintiff, by which the defendant was discharged against Zouch, "the verdict was taken upon the indebitatus affumpfit for money laid ❝out for the defendant's ufe; and it feemeth the indorsement by the "defendant to the plaintiff was good evidence of a request to pay "faid money to Zouch. Now, exception was taken that one bill was "payable to the defendant only, without the words "or his order," "and therefore not affignable by the indorsement; and the chief jus "tice did agree that the indorsement of this bill did not make him that "drew the bill chargeable to the indorfee; for the words "or to his "order, give authority to the plaintiff to affign it by indorsement; and'tis "an agreement by the firft drawer that he would answer it to the affignee; "but the indorsement of the bill which has not the words "or to his "order" is good, or of the fame effect between the indorfer and the indorfee, to make the indorfer chargeable to the indorfee." This cafe
certainly ought to have been confidered as fettling the law upon promiflory notes. Lord Holt here admits that promiffory notes are "verned by the fame laws and cuftoms as other bills of exchange ;" and that if the verdict had been taken upon the count which declared upon the notes as bills of exchange it would have been good. His reafons why a note to order is affignable, viz. "that the words, or to his "order, give authority to the plaintiff to affign it by indorsement; and that "'tis an agreement by the first drawer that he would anfer it to the af"fignee," are certainly good; and are the fame which were used in feveral modern cafes which will be noticed hereafter. The obfervation is also important " that the indorsement by the defendant to the plain"tiff was good evidence of a request to pay the money to Zouch." We fhall have occafion to refer to this cafe again when we come to confider the cafes of Clerk and Martin, and Buller and Crips, decided about nine years afterwards.
The cafe of Pearfon and Garret occurred in the next term anno 1693, and is reported in Comb. 227. and 4. Mod. 242. "The action was brought upon a note for the payment of fixty guineas when the de"fendant fhould marry fuch a perfon, &c. in which the plaintiff de"clared as upon a bill of exchange fetting forth the custom of mer"chants," &c. This note appears by the declaration, which is ftated at length 4 Mod. 242, to be dated 21ft October, 4th W. and M. by which the defendant" promised to pay to the plaintiff or his affigns fix"ty guineas in two months after the defendant should be lawfully "married to one Elizabeth Pretty."
It was objected that this was "only an agreement founded upon a "brokage, and therefore not within the custom of merchants; nei"ther were there ever yet any precedents to pay money upon fuch a « collateral contingency." The judgment was for the defendant; and it was faid that, "If the note had been given by way of commerce it had "been good; but to pay money upon fuch a contingency cannot be called "trading, and therefore not within the custom of merchants."
If any doubt could remain that the cafe of Hill and Lewis had fully fettled the law that promiffory notes were within the custom of merchants, that doubt must have been completely removed by the case of Williams v. Williams, decided at the next term in the fame year in the king's bench (viz. Pafch. 5. W. and M. Anno 1692,) Carthew 269. "The plaintiff Thomas Williams being a goldfmith in Lombard street, brought an action on the cafe against Jofeph Williams, the projec tor of the diving engine, and declared upon a note drawn by one
"John Pullin, by which he promised to pay . 12 10 o to the faid Jofeph Williams on a day certain; and he indorsed the note to one "Daniel Foe, who indorfed it to the plaintiff for like value received. "And now the plaintiff, as fecond indorfee, declared in this manner, "viz. "that the city of London is an ancient city, and that there is, "and from the time to the contrary whereof the memory of man doth "not exist, there hath been a certain ancient and laudable cuftom "among merchants and other perfons refiding and exercising commerce "within this realm of England, ufed and approved, viz. &c. So fets forth "the custom of merchants concerning notes fo drawn and indorsed ut fupra, by which the first indorfer is made liable as well as the second, upon failure of the drawer, and then sets forth the fact thus, viz. "And whereas alfo, a certain John Pullin, who had commerce by way of merchandizing, &c on fuch a day, at London aforesaid, to "wit, in the parish of St. Mary le Bow, in the ward of Cheape, ac"cording to the usage and custom of merchants, made a certain bill "or note in writing, fubfcribed with his name, bearing date, &c. " and by the faid bill or note promised to pay, &c. fetting forth the note; "and further, that it was indorfed by the defendant to Foc, and by roe "to the plaintiff, according to the usage and custom of merchants; and "that the drawer having notice thereof, refufed to pay the money, "whereby the defendant, according to the ufage and cuftom of mer
chants, became liable to the plaintiff, and in confideration thereof "promifed to pay it, &c. alleging that they were all perfons who "traded by way of merchandize, &c.
"To this the defendant pleaded a frivolous plea, and the plaintiff « demurred; and upon the first opening of the matter had judgment in B. "R. And now the defendant brought a writ of error in the exchequer "chamber, and the only error infifted on was, that the plaintiff had not "declared on the custom of merchants in London, or any other par"ticular place, (as the ufual way is) but had declared on a custom "through all England, and if fo it is the common law, and then it ought "not to be fet out by way of cuftom; and if it is a cuftom, then it ought "to be laid in fome particular place, from whence a venue might arise "to try it.
"To which it was anfwéred that this cuftom of merchants con"cerning bills of exchange is part of the common law, of which the judges will take notice ex officio, as it was refolved in the cafe of "Carter v. Downish, and therefore it is needless to set forth the cuf"tom fpecially in the declaration, for it is fufficient to say that such "a perfon, according to the ufage and custom of merchants, drew the bill; "therefore all the matter in the declaration concerning the fpecial
"custom was merely furpluffage, and the declaration good without << it.
“The judgment was affirmed.”
There cannot be a stronger cafe than this. On demurrer judgment was rendered for the plaintiff in the King's bench, which judgment was affirmed upon argument, upon a writ of error in the exchequer chamber, on the very point of the cuftom; fo that here was the unanimous concurrence of all the judges of England. This cafe, it is believed, has never been denied to be law, either before or fince the statute of Anne.
A short note of this cafe is to be found in 3 Salk. 68, by the name of Williams v. Field, in these words, "Ruled, that where a bill is "drawn payable to W. R. or order, and he indorses it to B. who indor
fes it to C. and he indorfes it to D. the last indorfee may bring an ac"tion against any of the indorfers, because every indorsement is a new "bill, and implies a warranty by the indorfer that the money shall be " paid."
The next cafe upon a promiffory note is that of Bromwich v. Loyd, (Hill, 8, W. 3, C. B. anno 1696)2 Lut. 1582, where the pleadings are fet forth at full length, in which the plaintiff declares that" at "London aforefaid, viz. in the parish, &c. there is a custom that if 66 any merchant or other perfon refiding and trading at London, make any note with his proper hand fubfcribed, and thereby promise to "pay to any other perfon dwelling at London, any fum in fuch note fpecified, then fuch person who fubfcribed fuch note, by reafon "thereof, and by the faid cuftom is liable to pay the money, &c. "That the defendant, 8th June 1696, refiding and dealing at London, "made a note, &c. and thereby promised to pay to the plaintiff at "London aforesaid in the parish and ward aforesaid residing, £. 26. "10. 9 on demand, by reafon whereof, &c.
"To this the defendant pleaded that at the time of making the faid "note, he was refident at Brentford, &c. abfque hoc, that he was refi"dent at London. To which plea the plaintiff demurred, for that the ❝ defendant had traversed matter not traversable, and because it tended "to the general iffue," &c.
It was urged for the defendant, that the custom was laid in St. Male Bow, but in fact is extended to London, and was therefore contradictory. Sed non allocatur " for per curiam, the parish is mentioned
"but in refpect of the venue, and that it was matter of neceffity to al"lege it fo."
And it was further said for the defendant, " that there were three things neceffary to maintain the action, viz. 1. commorancy, 2. The "making of the note, 3. Commerce between the parties; but there "is no place mentioned in the declaration where the note was "made; fed non allocatur, for it shall be intended at the parish of St. "Mary le Bow; for it is faid, that the defendant at London aforefaid in "the parish and ward aforefaid, refiding and ufing commerce, made a "note; and therefore the whole is to be intended at the same place.
"It was also objected that the custom was unreasonable, because it took "away the proof how the money became due; but the court were of opi"nion that the cuflom was good notwithstanding this objection.
Treby, chief justice, said in this case, that bills of exchange at firft "were extended only to merchant frangers, trading with English "merchants, and afterwards to inland bills between merchants trading "one with another here in England; and after that to all traders and "dealers, and of late to all perfons trading or not; and that there was no "occafion to allege any custom; and that was not denied by any of the "other juftices. And the chief justice also said, that bills of exchange "were of fuch general use, and benefit, that on an indebitatus affump"fit, a bill of exchange may be given in evidence to maintain the action; "and Powell, juftice, faid, that on a general indebitatus affumpfit for "money received to the ufe of the plaintiff, fuch bills may be left "to the jury to determine whether it was for value received or not. "In Hill, 9 and 10, W. 3 the plaintiff had judgment by the opinion " of the whole court." This cafe is in perfect conformity to those of Hill and Lewis, and Williams and Williams.
The cafe of Pinckney v. Hall (Hill, 8 and 9, W. 3, anno 1697, B. R.) lord Raymond, 175, was by the indorfee of a promiffory note made by the defendant for himself and partner as joint merchants to Hutchins or order, and by him indorfed to the plaintiff. The declaration was on the custom of England, to which the defendant demurred.
Ift. "Because the declaration being per confuetudinem Anglia, &c. "was ill, for the custom of England is the law of England, of which "the judges ought to take notice without pleading. Sed non allocatur. "For though heretofore this has been allowed, yet of late time it has "always been over-ruled, and in an action against a carrier it is always "laid per confuetudinem Anglia. 2d. Though lex mercatoria is part of the