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an indebitatus affumpfit for money laid out for the use of the defendant, And the principal question was, whether the plaintiffs had used due diligence in applying to Moore for the money. Holt, chief justice, beld “ Thut goldsmiths' bills were governed by the same laws and customs as other u bills of exchange ; and every indorsement is a new bill: And so long as “ a bill is in agitation, (circulation) and such indorsements are made, “ all the indorsers 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 indorsee; but by the “custom this is restrained, viz. the acceptance (receipt) is intended to « be upon this
agreement, fc. that the indorsee will receive it of the “first drawer if he can, and if he can not, then that the indorser « will answer it; as if the first drawer be insolvent at the time of the “ indorsement, or upon demand refuses to pay it, or cannot be found. “ And the indorfer is not discharged without actual payment, until “ there be some neglect or default in the indorsee, as if he does not “ endeavour to receive it in convenient time, and then the first “ drawer becomes insolvent.” “ He left it to the jury to consider, " whether the time in this case 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« fideration found for the plaintiff; upon which the plaintiff prayed to “ take the verdict upon the indebitatus assumpsit. 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 upon w the bills of exchange ; but if the evidence be applicable to any other part “ of the declaration, you make take it upon any such part to which the “ evidence is applicable. And because Zouch had sworn 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 affumpht for money laid “ out for the defendant's use; and it seemeth the indorsement by the “ defendant to the plaintiff was good evidence of a request to pay the ~ said 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 align it by indorfement ; and'tis “ an agreement by the first drawer that he would answer it to the allignet ; 6 but the indorsement of the bill which has not the words “ or to his “ order" is good, or of the same effect between the indorser and the si indorsee, to make the indorfer chargeable to the indorsee.” This case
certainly ought to have been considered as settling the law upon promiffory notes. Lord Holt here admits that promiffory notes are “go
“ verned by the same laws and customs 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 assignable, viz. “ that the words, or to his “ order, give authority to the plaintiff to assign it by indorsement ; and that “ 'tis an agreement by the first drawer that he would answer it to the af“ hgnee,” are certainly good ; and are the fame which were used in several modern cases which will be noticed hereafter. The observation 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 shall have occasion to refer to this case again when we come to confider the cases of Clerk and Martin, and Buller and Crips, decided about nine years afterwards.
The case 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 should marry such a person, &c. in which the plaintiff de“ clared as upon a bill of exchange setting forth the custom of mer“ chants,” &c. This note appears by the declaration, which is stated at length 4 Mod. 242, to be dated 21st October, 4th W. and M. by which the defendant “ promised to pay to the plaintiff or his aligns six“ ty guineas in two months after the defendant Thould 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 such a “ collateral contingency.” The judgment was for the defendant; and it was said that, “ If the note had been given by way of commerce it had « been good; but to pay money upon such a contingency cannot be called
trading, and therefore not within the custom of merchants.”
any doubt could remain that the case of Hill and Lewis had fully settled 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 same year in the king's bench (viz. Pasch. 5. W. and M. Anno 1692,) Carthew 269. « The plaintiff Thomas Williams being a goldsmith in Lombard street, * brought an action on the case against Joseph Williams, the projec« tor of the diving engine, and declared upon a note drawn by one « John Pullin, by which he promised to pay 6.12 10 o to the faid
Jofeph Williams on a day certain ; and be indorsed the note to one « Daniel Foe, who indorsed 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 custom « among merchants and other perfons residing and exercising commerce « within this realm of England, used and approved, viz. &c. So sets forth " the custom of merchants concerning notes so drawn and indorsed ut “ fupra, by which the first indorser is made liable as well as the second, “ upon failure of the drawer, and then sets forth the fact thus, viz. “ And whereas also, a certain John Pullin, who had commerce by
way of merchandizing, &c. on such 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, fubscribed with his name, bearing date, &c. “ and by the said bill or note promised to pay, &c. setting forth the note; « and further, that it was indorsed by the defendant to Foe, and by roe « to the plaintiff, according to the usage and custom of merchants; and « that the drawer having notice thereof, refused to pay the money, “ whereby the defendant, according to the usage and custom of mer“ chants, became liable to the plaintiff, and in confideration thereof “ promited to pay it, &c. alleging that they were all persons 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.
And now the defendant brought a wirit of error in the exchequer « chamber, and the only error insisted on was, that the plaintiff had not « declared on the custom of merchants in London, or any other par“ ticular place, (as the usual way is) but had declared on a custom “ through all England, and if so it is the common law, and then it ought « not to be set out by way of custom; and if it is a custom, then it ought “ to be laid in some particular place, from whence a venue might arise “ to try it.
“ To which it was answered that this custom 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 resolved in the case of “ Carter v. Downish, and therefore it is needless to set forth the cus“ tom specially in the declaration, for it is sufficient to say that such “ a person, according to the usage and custom of merchants, drew the bill; « therefore all the matter in the declaration concerning the special
“ custom was merely surplussage, and the declaration good without 66 it.
“ The judgment was afirmed.”
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 custom ; so that here was the unanimous concurrence of all the judges of England. This case, it is believed, has never been denied to be law, either before or since the statute of Anne.
A short note of this case 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$6 ses it to C. and he indorses it to D. the last indorfee may bring an ac* tion against any of the indorsers, because every indorsement is a new “ bill, and implies a warranty by the indorser that the money fhall be
The next case upon a promissory note is that of Bromwich v. Loyd, (Hill, 8. W. 3, C. B. anno 1696) 2 Lut. 1582, where the pleadings are set forth at full length, in which the plaintiff declares that “ at « London aforesaid, viz. in the parish, &c. there is a custom that if
any merchant or other person residing and trading at London, make “ any note with his proper hand subscribed, and thereby promise to “ pay to any other person dwelling at London, any sum in such note
fpecified, then such person who subscribed such note, by reason "ther of, and by the faid custom is liable to pay the money, &c. « That the defendant, 8th June 1696, residing 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 reason whereof, &c.
“ To this the defendant pleaded that at the time of making the said « note, he was resident at Brentford, &c. absque hoc, that he was reli« 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 ifsue,” &c.
It was urged for the defendant, that the custom was laid in St. Mary le Bow, but in fact is extended to London, and was therefore contradictory. Sed non allocatur “ for per curiam, the parish is mentioned
“ but in respect of the venue, and that it was matter of necessity to al“ lege it so."
And it was further said for the defendant, « that there were three
things necessary 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 aforesaid in “ the parish and ward aforesaid, residing and using 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 rotwithstanding tbis objection.
“ Treby, chief justice, said in this case, that bills of exchange at first “ were extended only to merchant Arangers, 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 persons trading or not; and that there was no « occasion to allege any custom; and that was not denied by any of the “ other justices. And the chief justice also said, that bills of exchange “ were of such 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, justice, said, that on a general indebitatus affumpfit for “money received to the use of the plaintiff, such 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 ss of the whole court.” This case is in perfect conformity to those of Hill and Lewis, and Williams and Williams.
The case of Pinckney v. Hall (Hill, 8 and 9, W. 3, anno 1697, B. R.) i 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 indorled to the plaintiff. The declaration was on the custom of England, to which the defendant demurred.
ist. “ Because the declaration being per confuetudinem Anglia, &c. 56 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 heretofort this has been allowed, yet of late time it has u 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