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“ law of England, yet it is but a particular cuftom among merchants, and “ therefore it ought to be thewn in London or some other particular “ place. Sed non allocatur ; for the custom is not restrained to any parti« cular place." Two other exceptions were taken which are not material to the present question : but judgment was given for the plaintiff.

At the next term (Easter 9, W. 3) 1 Lord Raymond, 180, occurred the case of Nicholson v. Sedgwick, reported also in 3 Salk. 67, where it is stated to be

upon a


“ The defendant Sedgwick, being a goldsmith, made a note in wri“ ting by which he promised to pay to one Mason, or to the bearer “ thereof £. 100. Mason 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 arrest 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 case the indorsee has been allowed to bring the action in his own name.” The principal point of this case, viz. that the bearer could not maintain an action in his own name, was expressly declared not to be law, in the case of Grant v. Vaughan, 3 Bur. 1516.

In the same year in the case of Boulton v. Hillesden, Comb. 450, it was decided that a master may be bound by a promissory note made by his servant.

Another case in the same year is cited in i Com. Dig. 190, 191, by the name of Cromwell v. Floyd, in C. B. which does not seem to have been reported, unless it be the same case with that reported in 2 Lut. 1582, by the name of Bromwich v. Loyd; which is not impossible.

In Mich. term of the same year, in the case of Woolvil v. Young, et al. 5 Mod. 367, it was held that a declaration upon a promissory note, founded on the custom 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 case in chancery, in the same year, reported by Ch. Baron Comyns, p. 43, it is said that the “indorfee for a valuable

« confideration recovered in indebitatus affumpfit on this bill of er

change, against the drawer. The drawer filed a bill in chancery “ to be relieved against this judgment at law, alleging that he received u no value; and that the indorsee might refort to the indorser for his « original claim. It was answered that the drawer might be relieved “ against the payee, or any claiming as servant or factor of, or to the . use of the payee : but the chancellor held that the indorsee being o an honest creditor, and coming by this bill fairly, for the fatif. « faction of a just debt, he would not relieve against him, because it « would tend to destroy trade which is carried on every where by bills “ of exchange, and he would not lessen an honeft creditor's security."

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 settled to be the fame upon both. Yet if it had been a bill of exchange it seems probable that something would have been said 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 refused to pay, &c.

The case of the bank of England v. Newman, 12 Mod. 241. B. R. i 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 indorsing it. Upon Bellamy's failure the bank brought suit 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 indorsed, there is a remedy against the indorfer."

Hawkins v. Cardy, in the next year, (Mich. 10. W. 3. B. R.) i Lord Raym. 360.1 Salk. 65. Carth. 466, was also upon a promiffory note. “ The plaintiff brought an action on the cale upon a bill

of exchange," ( says the reporter,) “ against the defendant, and de“clared upon the custom of merchants, which he shewed 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 said 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 sum fo inderfed, “to the person to whom it is indorsed payable; and then the plaintiff “ fhews that the defendant, being a merchant, fubscribed a bill of «£. 46 19 0 payable to Blackman or order ; that Blackman indorsed [..43 4 0 of it, payable to the plaintiff,” &c.

On demurrer, the declaration was adjudged ill; “ for a man can “ not apportion such personal 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 o the « declaration had been good.

And “ Holt, chief justice, faid, that this is not a particular local cus« tom, but the common custom of merchants, of which the law takes « notice."

Salkield in reporting this case, begins thus, “ A. having a bill of exchange upon B. indorses part of it to I. S. who brings an action s for his part,” &c. This, compared with lord Raymond's report of the case, shews what has been already so often mentioned, that no difference had yet been discovered between the law respecting promiffory notes, and that concerning inland bills of exchange. Even lord Raymond states it first to be a bill of exchange, and immediately shows it to have been a promissory note. So glaring a contradiction could not have passed uncorrected, if a promissory note and an inland bill of exchange had not been considered as the same thing.

In this case it will be remarked, that upon demurrer, the court said that this declaration, upon the custom of merchants, on a promissory note, by the indorsee against the maker, would have been good, if the receipt of the £• 3 15 o had been acknowledged.

The next year produced the case of Lambert v. Oakes (Pafch 11. W. 3. B. R.) reported in 1. lord Ray. 443. s. Salk. 127, by the name of Lambert v. Pack. i Salk. 126. cafe 6, Anonymous. 12 Mod. 244. and Holt 118. This case was clearly upon a promissory note, although four out of the five reports of the case call it a bill of change. This circumstance shows that no difference was understood to exist at that time between a promissory note and an inland bill of exchange ; for upon this supposition only can we account for the extreme inaccuracy of so 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 expressly appear in Lord Raymond's report of the case, and that is that the plaintiff grounded his action on the custom of merchants ; which was at that time the only known and established form of declaring upon a promissory note. This was then an action by the indorsee against the indorfer of a promissory note, payable to defendant or order, grounded on the custom of merchanti, which it was decided that the plaintiff must demand the money of the drawer of the note, before he could resort to the indorfer, and is another strong case to show that promissory notes and inland bills of exchange, before the statute of Anne, were precisely on the fame footing.

The case of Starke v. Cheesman, in the fame year, Carth. 509. was upon a bill of exchange drawn by the defendant in Virginia upon himself in London, which, as has been before observed, is in effect a promissory note. The plaintiff had judgment, although he had not alleged in the declaration that the defendant promised to pay the money after protest, or even that he had notice of the protest, for the « law did raise the promise upon the custom of merchants and therefore it “ was not neceffary to lay an actual promise.”

In the next year, (Pasib. 12. W. 3. Anno 1700, B. R.) we find the case 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 so 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

We will take such a note prima facie for evidence of money “ lent; and though they have declared on the custom, yet we muft take “ care that by such a drift, the law of England be not changed, by “ making all notes bills of exchange.” “But all seemed to agree if it “ were made payable to him or order, the defendant by that form bad made it negotiable, and by consequence he would be liable to the action of alignee 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 obtained, they received the same law with OUTLANDISH bills: and he said « he remembered that at a trial upon an inland bill before Hale, the “ defendant's counsel would put the plaintiff to prove the custom; “ but Hale said they had a hopeful point of it. Et adjorn.

It does not appear that this case 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 cases of Horton and Ceggs, Hodges and Steward, and Nicholson v. Sedgwick, (before cited). Bus


thefe .cases, as before observed, were expressly denied to have been Jaw, by Lord Mansfield and the other judges in the case of Grant v. Vaughan, 3. Bur. 1516.

The other point of the case, viz. that if the note had been made payable to him or order, the defendant, by that form, had made it negotiable, and the assignee might have sued 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 reason given is the same with that used in the case of Grant and Vaughan, viz. that the defendant by the orginal contract had made it negotiable, and had made himself expressly liable to the action of the alignee. The further seafon given by the court shows moft clearly that a promiffory note payable to order was an inland bill of exchange; “for, say the court, “ if a man who is no merchant will draw a bill of exchange, he is sua. « ble upon it according to the custom of merchants, for he makes « himfelf a merchant pro tanto."

There was another similar case at the same term, between Jordan and Barloe, 3. Salk. 67, where it is said to be “ ruled that where a bill is drawn payable to W. R. or order, 'tis within the custom of mera chants; and such a bill may be negotiated and aligned by custom, and the contract of the parties ; and an action may be grounded on it, « though'tis no specialty, but if 'tis made payable to W. R. or bearer, « 'tis not within the custom of merchants; and therefore, when upon .« such 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 instrument in this case is not expressly stated to be promissory note, yet it seems Itrongly implied from the expressions used. For it

For it may be remarked, ift, that it appears by all the reports of the time that the words bill and note were synonymous; that the term promissory note was not in use, and that generally whenever the term bill is used alone, it meant a promissory note.


2dly. It is said that “a bill payable to W. R. or order, was within « the custom of merchants.” It was furely not necessary at that time to have decided folemnly that a bill of exchange was within the custom of merchants.

3dly. It is said that “ such a bill may be negotiated and assigned ** by custom and the contract of the parties, and an action may be

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