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"law of England, yet it is but a particular cuftom among merchants, and "therefore it ought to be shewn in London or fome other particular "place. Sed non allocatur; for the custom is not reftrained to any parti"cular place." Two other exceptions were taken which are not material to the prefent question: but judgment was given for the plaintiff.
At the next term (Eafter 9, W. 3) 1 Lord Raymond, 180, occurred the cafe of Nicholson v. Sedgwick, reported also in 3 Salk. 67, where it is ftated to be upon a bill.
"The defendant Sedgwick, being a goldfmith, made a note in wri"ting by which he promised to pay to one Mafon, or to the bearer "thereof. 100. Mafon delivered the note to the plaintiff for £.100 "in value received," who brought the action as bearer and declared upon the "custom of merchants and others trading within this realm.”
Upon non affumpfit pleaded, and verdict for the plaintiff, "it was "moved in arreft of judgment that this action could not be brought "in the name of the bearer, but it ought to be brought in the name "of him to whom it was made payable. Quod fuit conceffum per cu"riam; for the difference is, where the note is made payable to the "party or bearer, and where it is payable to the party or order; in "the latter cafe the indorfee has been allowed to bring the action in his own "name." The principal point of this cafe, viz. that the bearer could not maintain an action in his own name, was exprefsly declared not to be law, in the cafe of Grant v. Vaughan, 3 Bur. 1516.
In the fame year in the cafe of Boulton v. Hillefden, Comb. 450, it was decided that a mafter may be bound by a promiffory note made by his fervant.
Another cafe in the fame year is cited in 1 Com. Dig. 190, 191, by the name of Cromwell v. Floyd, in C. B. which does not feem to have been reported, unless it be the fame cafe with that reported in 2 Lut. 1582, by the name of Bromwich v. Loyd; which is not impoffible.
In Mich. term of the fame year, in the cafe of Woolvil v. Young, et al. 5 Mod. 367, it was held that a declaration upon a promiffory note, founded on the cuftom of England, was bad, because it did not allege that the defendants were commercium habentes; but it seems to admit that it would have been good if those words had been used.
In an anonymous cafe in chancery, in the fame year, reported by Ch. Baron Comyns, p. 43, it is faid that the "indorfee for a valuable
"confideration recovered in indebitatus affumpfit on this bill of ex"change, against the drawer. The drawer filed a bill in chancery "to be relieved against this judgment at law, alleging that he received "no value; and that the indorfee might refort to the indorfer for his "original claim. It was anfwered that the drawer might be relieved "againft the payee, or any claiming as fervant or factor of, or to the
ufe of the payee: but the chancellor held that the indorsee being "an honeft creditor, and coming by this bill fairly, for the fatif"faction of a juft debt, he would not relieve against him, because it "would tend to deftroy trade which is carried on every where by bills "of exchange, and he would not leffen an honeft creditor's fecurity.”
It may be doubted whether this was really a bill of exchange or a promiffory note; and perhaps it is immaterial which it was, as the law had been clearly fettled to be the fame upon both. Yet if it had been a bill of exchange it seems probable that fomething would have been faid of the drawee; by which it fhould appear that the plaintiff had a right of action against the drawer; fuch as that the bill had been presented for acceptance, and refused; or that being accepted by the drawee, he had refufed to pay, &c.
The cafe of the bank of England v. Newman, 12 Mod. 241. B. R. 1 lord Ray. 442, and Comyns rep. 57, was upon a promiffory note, drawn by one Bellamy, payable to Newman or bearer, who discounted it at the bank without indorfing it. Upon Bellamy's failure the bank brought fuit against Newman. But the court held him not to be liable, "for the law is, that if a bill or note be payable to one or "bearer, and he negotiates the bill and delivers it for ready money "paid to him, without any indorsement on the bill, this is a plain "buying of the bill; as of tallies, bank-bills, &c. but if it be indorfed, "there is a remedy against the indorfer."
Hawkins v. Cardy, in the next year, (Mich. 10. W. 3. B. R.) 1 Lord Raym. 360. 1 Salk. 65. Carth. 466, was alfo upon a promiffory note. "The plaintiff brought an action on the case upon a bill "of exchange," (fays the reporter,)" against the defendant, and de"clared upon the custom of merchants, which he fhewed to be thus: "that if any merchant fubfcribes a bill, by which he promises to pay a fum "of money to another man or his order, and afterwards the perfon "to whom the bill was made payable, indorfes the faid bill for the "payment of the whole fum therein contained, or any part thereof, "to another man, the first drawer is obliged to pay the fum fo inderfed, "to the perfon to whom it is indorfed payable; and then the plaintiff "fhews that the defendant, being a merchant, fubfcribed a bill of
" £.46 19 payable to Blackman or order; that Blackman indorsed ".43 4o of it, payable to the plaintiff," &c.
On demurrer, the declaration was adjudged ill; "for a man can "not apportion fuch perfonal contract; for he cannot make a man " liable to two actions, where by the contract he is liable but to one." "But if the plaintiff had acknowledged the receipt of the £.3 15 0 the "declaration had been good."
And "Holt, chief juftice, faid, that this is not a particular local cuf "tom, but the common custom of merchants, of which the law takes "notice."
Salkield in reporting this cafe, begins thus, "A. having a bill of "exchange upon B. indorfes part of it to I. S. who brings an action "for his part," &c. This, compared with lord Raymond's report of the cafe, fhews what has been already fo often mentioned, that no difference had yet been discovered between the law refpecting promiffory notes, and that concerning inland bills of exchange. Even lord Raymond ftates it first to be a bill of exchange, and immediately shows it to have been a promiffory note. So glaring a contradiction could not have paffed uncorrected, if a promiffory note and an inland bill of exchange had not been confidered as the fame thing.
In this cafe it will be remarked, that upon demurrer, the court faid that this declaration, upon the custom of merchants, on a promiffory note, by the indorfee against the maker, would have been good, if the receipt of the .315 o had been acknowledged.
The next year produced the cafe of Lambert v. Oakes (Pafch 11. W. 3. B. R.) reported in 1. lord Ray. 443. 1. Salk. 127, by the ' name of Lambert v. Pack. 1 Salk. 126. cafe 6, Anonymous. 12 Mod. 244. and Holt 118. This cafe was clearly upon a promiffory note, although four out of the five reports of the cafe call it a bill of exchange. This circumstance shows that no difference was understood to exift at that time between a promiffory note and an inland bill of exchange; for upon this fuppofition only can we account for the extreme inaccuracy of fo many reporters upon that point. The fact of its being called a bill of exchange induces also a strong presumption of another fact which does not exprefsly appear in Lord Raymond's report of the cafe, and that is that the plaintiff grounded his action on the cuftom of merchants; which was at that time the only known and established form of declaring upon a promiffory note. This was then an action by the indorfee against the indorfer of a promiffory note, pay
able to defendant or order, grounded on the custom of merchants, which it was decided that the plaintiff must demand the money of the drawer of the note, before he could refort to the indorfer; and is another strong cafe to fhow that promiffory notes and inland bills of exchange, before the ftatute of Anne, were precisely on the fame footing.
The cafe of Starke v. Cheefman, in the fame year, Carth. 509. was upon a bill of exchange drawn by the defendant in Virginia upon himfelf in London, which, as has been before obferved, is in effect a promiffory note. The plaintiff had judgment, although he had not alleged in the declaration that the defendant promised to pay the money after proteft, or even that he had notice of the proteft, for "the "law did raife the promife upon the custom of merchants and therefore it "was not neceffary to lay an actual promise."
In the next year, (Pafch. 12. W. 3. Anno 1700, B. R.) we find the cafe of Carter v. Palmer, reported in 12. Mod. 380.
"Palmer had given a note under his hand in this form: « I promise "to pay the BEARER fo much money on demand."
"Plaintiff brings his action grounding it upon the cuftom of mer"chants, as if it were a bill of exchange; and avers no confideration. "After verdict, upon motion in arreft of judgment, Holt, chief juf"tice, "We will take fuch a note prima facie for evidence of money "lent; and though they have declared on the custom, yet we must take "care that by fuch a drift, the law of England be not changed, by "making all notes bills of exchange." "But all feemed to agree if it "were made payable to him or order, the defendant by that form had "made it negotiable, and by confequence he would be liable to the action of "affignee in his own name; for if a man who is no merchant will "draw a bill of exchange, he is fuable upon it according to the custom of "merchants, for he makes himself a merchant, pro tanto. And inland « hills were not known till trade grew to a great height; and when they ob"tained, they received, the fame law with OUTLANDISH bills: and he faid " he remembered that at a trial upon an inland bill before Hale, the "defendant's counfel would put the plaintiff to prove the custom; "but Hale faid they had a hopeful point of it. Et adjorn.”
It does not appear that this cafe was finally decided, but the principal point, viz. that a bill or note payable to bearer was not a bill of exchange, had been before decided in the cafes of Horton and Coggs, Hodges and Steward, and Nicholson v. Sedgwick, (before cited). But
thefe cafes, as before obferved, were exprefsly denied to have been law, by Lord Mansfield and the other judges in the case of Grant v. Vaughan, 3. Bur. 1516.
The other point of the cafe, viz. that if the note had been made payable to him or order, the defendant, by that form, had made it negotiable, and the affignee might have fued in his own name, is in strict analogy with the whole current of authorities from the time of the first introduction of promiffory notes; and the reafon given is the fame with that used in the cafe of Grant and Vaughan, viz. that the defendant by the orginal contract had made it negotiable, and had made himfelf exprefsly liable to the action of the affignee. The further reafon given by the court fhows moft clearly that a promiffory note payable to order was an inland bill of exchange; «for, fay the court, "if a man who is no merchant will draw a bill of exchange, he is fua"ble upon it according to the cuftom of merchants, for he makes "himself a merchant pro tanto.”
There was another fimilar cafe at the fame term, between Jordan and Barloe, 3. Salk. 67, where it is faid to be "ruled that where a bill is drawn payable to W. R. or order, 'tis within the custom of mer"chants; and fuch a bill may be negotiated and affigned by custom, and "the contract of the parties; and an action may be grounded on it, "though'tis no fpecialty; but if 'tis made payable to W. R. or bearer, " 'tis not within the cuftom of merchants; and therefore, when upon «fuch a bill, the plaintiff declared, that the defendant being a mer"chant, had drawn a bill according to the custom of merchants, but "had not paid the money, this declaration was held ill.”
Although the inftrument in this cafe is not exprefsly stated to be a promiflory note, yet it seems strongly implied from the expreffions ufed. For it may be remarked, 1ft, that it appears by all the reports of the time that the words bill and note were fynonymous; that the term promissory note was not in use, and that generally whenever the term bill is used alone, it meant a promiffory note.
2dly. It is faid that " a bill payable to W. R. or order, was within "the custom of merchants." It was furely not neceffary at that time to have decided folemnly that a bill of exchange was within the custom of merchants.
3dly. It is faid that "fuch a bill may be negotiated and affigned by custom and the contract of the parties, and an action may be