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"grounded on it, though 'tis no fpecialty;" which laft expreffion feems more applicable to a promiffory note, than to a regular bill of exchange."
4thly. It is faid that "the defendant drew a bill, but had not paid "the money;" without naming any drawee, or a non-acceptance or non-payment by the drawee, or any other circumftance to thew that the drawer was liable to pay the money.
5thly. The points decided are precisely those mentioned in the preceding cafe of Carter v. Palmer.
In the cafe of Crawley v. Crowther, 2 Freem. 257, (Trin. 1702,) in chancery, it was faid, that " it is now likewise held, and the prac"tice is fo, that if a man gives a note for money, payable on demand, "he need not prove any confideration.'
Lawfon v. Lamb, (Hill. 12. W. 3. C. B. Anno 1700) 1 Lut. 274, was another cafe upon a promiffory note by affignee of payee, a bankrupt, against the maker of the note. The pleadings are fet forth at large, and it appears that the plaintiff declared upon the custom of mer chants within the realm of England, upon a note payable to the bankrupt or order.
"The objection to the declaration was, that all the proceedings of "the commiffioners of bankrupt ought to be alleged at large; but by "reafon of divers precedents according to the declaration here, judgment "per tot. cur' was given for the plaintiff."
In Trin. term of the fame year, it is faid by Comyns, in his digeft, p. 191, of vol. I, that in the case of Butcher v. Swift, in B. R. it was doubted, whether a promiffory note to A. or order, was within the · custom of merchants, and whether the affignee could bring an action upon it in his own name. This cafe, it is believed, has not been reported.
In 1 Salk. 183, Ford v. Hopkins, (Hill. 12. W. 3.) lord Holt is reported to have faid at nifi prius, "that goldfmiths notes to pay money or tickets, are evidence of the receipt of money." As he had before faid that every indorsement makes a new bill, it feems to follow that an indorsement is alfo evidence of the receipt of money.
We have now examined all the reported cafes upon promiffory notes, from the time of the first introduction of inland bills, to the time of lord Holt's dccifion in the cafe of Clerke v. Martin. At least, if any
others are to be found, they have escaped a diligent fearch. They form a series of decifions for a period of more than 30 years, in which we discover an uncommon degree of unanimity, as well as of uniformity. We find the law clearly established to be the fame upon promiffory notes as upon inland bills; and we find no evidence that the latter were in ufe before the former.
There is not a contradictory cafe, or even dictum, unless we confider as fuch the doubt expreffed in the cafe of Butcher v. Swift cited by Comyns; but that cafe is not reported, and therefore it is impoffible to fay upon what ground the doubt was fuggefted. The cafes upon promiffory notes and inland bills, go to establish not only their likeness in every refpect, but even their identity; for the former are almost uniformly called inland bills.
V. Upon examining the printed books of precedents during the above period, we shall find that the common ufage was to declare upon a promiffory note as upon an inland bill of exchange.
The first precedent of a declaration upon a promiffory note is that in Brownlow latine redivivum p. 74, which is prior to any of the declarations upon inland bills of exchange. It is in fubftance as follows, that there is and was from time immemorial a custom among merchants at the city of Exeter, and merchants at Crozict, that if any merchant at Croziet fhould make any bill of exchange, and by the faid bill fhould acknowledge himself to be indebted to another merchant in any fum of money to be paid to fuch other merchant or his order, and fuch merchant to whom the fame fhould be payable, fhould order fuch fum to be paid to another merchant, and fuch merchant to whom the fame was payable should request the merchant who acknowledged himself so as aforefaid to be indebted, to pay such sum to fuch other merchant to whom he had ordered the money to be paid; and if upon fuch request the merchant who acknowledged himself to be indebted in the fum in fuch bill and indorsement mentioned, fhould accept thereof, then he would become chargeable to pay the faid fum to the perfon to whom it was by the faid bill and indorsement directed to be paid at the time in the said bill mentioned, according to the tenor thereof. It then avers that on the 8th May 1678, the defendant according to the custom aforefaid, acknowledged himself to be indebted to one M. M. in 525. which he obliged himself and his affigns (this is probably mifprinted) to pay to the faid M. M. who by indorfement on the fame bill of exchange on at ordered the money to be paid to the plaintiff, which bill of exchange afterwards, to wit, on the defendant faw and accepted, by which acceptance ant by the ufage aforefaid the
defendant became liable, &c. and in confideration thereof promised to pay, &c.
There is in the fame book p. 77, a declaration upon a bill of exchange at double ufuance, which is probably upon an inland bill, as the custom is alleged generally among merchants, but does not fay at what place.
The next declaration on a promiffory note is in the case of Horton v. Coggs, 3 Levinz 296. The note is dated 1ft October, 4 Jac. 2. The custom is alleged to be in London, that if any merchant or goldfmith in London fhould make a bill or note in writing, with his name fubfcribed, and thereby promife to pay to any perfon or bearer, &c.
In Clift's Entries 918, is a declaration upon an inland bill of exchange, calling it a note, and the word bill is not mentioned in the whole count. This shows that the words bill and note were confidered as fynonimous.
In the fame book 899, Turner v. Toft is a declaration by the inderfee v. the maker of a promiffory note dated 6th November 1684. It states that within this realm of England, viz. at the city of Bristol, there is and from time immemorial has been a cuftom among merchants, &c. used and approved, viz. that if any merchant or other perfon ufing commerce, &c. make any note under his proper hand and thereby promife to pay to any other merchant, &c. in the fame note mentioned, or to his order, any fum of money at any time in fuch note specified; and fuch merchant, &c. to whom or to whofe order the fame is payable, &c. by indorsement of the said note, appoint such sum of money in the note mentioned, to be paid to any other merchant, &c. in the faid indorsement mentioned, or to his order, then such person who fubfcribed fuch note, having notice of fuch indorfement, is chargeable, and for the whole time aforefaid hath been accustomed to be chargeable, to pay the fum of money in fuch note mentioned, to the perfon in fuch indorsement mentioned, at the time in fuch note limited for the payment thereof, according to the tenor of fuch note. It then fets forth the facts to bring the cafe within the custom, by reason of which, and of the custom aforefaid, the defendant became liable, &c. and fo being liable in confideration thereof promised to pay, &c.
The next precedent is in the cafe of Sheppard and Bragg v. Flemyng (Mich. 5 W. and M.) Clift. Ent. 929, Indorsees v. Maker. "Whereas "the faid Flemyng on 28th October 1692, at, &c. according to the "custom of merchants in that case used and approved, made his cer"tain bill in writing, and the fame bill with his proper hand fubfcribed, and by the faid bill promifed to pay to one George Mafon or order, the
fum of £. 40 upon the 28th day of November then next following, "for value received, and whereas the faid George Mafon afterwards, «<< viz. on by indorsement with his proper hand fubfcribed "upon the faid bill according to the ufage and cuftom of merchants "aforefaid in that case used and approved, appointed the contents of "the faid bill to be paid to the faid William Sheppard and Jofeph "Bragg, by the name of William Sheppard and company, in the faid indorsement named, whereof the faid Flemyng then and there had "notice, by reafon of which premifes and by the custom of merchants "in that behalf used and approved, he was liable, &c. and being fo «liable, in confideration of the premises, promised to pay," &c.
In Clift. Ent. 916, in the cafe of Gibb's admx. v. Fowle and Wooton, is a declaration upon the cuftom of merchants, by adminiftratrix of the payee against the mafter, upon a promiffory note made by his servant, dated 29th May, 1693. See also i Wentworth's fyftem of pleading 346.
In p. 914, in the cafe of Dymes v. Smith (Mich. 8, W. 3.) is a declaration on the custom, by the payee against the master upon a like note made by the fervant, 7th May 1696. And in p. 913, in the cafe of Wifeman v. Conyers, is another, upon the cuftom, by the indorfee against the maker of a promiffory note, dated 4th May 1686.
In 2 Mod. Intr. 126, is another declaration upon the cuftom by the indorfee against the maker of three promiffory notes, dated in 1697This declaration is precifely like a modern declaration upon a promiffory note, excepting that the note is called a bill, and is faid to be made and indorsed" according to the custom of merchants," "whereby accord❝ing to the custom of merchants," the defendant became liable, and fo being liable, &c.
In p. 122 is another by payee v. the maker of a promiffory note calling it a "bill or note," and fetting forth the custom specially.
In every cafe upon a promiffory note the declaration is grounded en the cuftom of merchants.
Upon a review of this lift of authorities and precedents we are at a loss to imagine from what motive and upon what grounds, lord Holt could at once undertake to over-rule all these cafes, and totally change the law as to promiffory notes: and why he fhould admit inland bills of exchange to be within the cuftom of merchants, and deny that privilege to promiffory notes; when the fame evidence
which proved the former to be within the custom equally proved that it extended to the latter. By examining the books it will be found that most of the points which have been decided respecting inland bills of exchange, have been decided upon cafes on promiffory notes. If he confidered promiffory notes as a new invention, when compared with inland bills of exchange, he feems to have mistaken the fact; for the probability is that the former are the most ancient, or, to fay the leaft, are of equal antiquity.
VI. But let us proceed to examine the cafe of Clerk v. Martin, (Pafch. Anne, B. R.) 2 lord Ray. 757. 1 Salk. 129, upon which alone is founded the affertion in modern books "that before the ftatute of Anne promiffory notes were not affignable or indorseable over within the custom of merchants, fo as to enable the indorsee to bring an action in his own name against the maker." The cafe is thus reported by lord Raymond:
"The plaintiff brought an action upon his case against the defend"ant upon feveral promises; one count was upon a general indebita"tus affumpfit for money lent to the defendant; another was upon "the custom of merchants as upon a bill of exchange; and fhewed that "the defendant gave a note fubfcribed by himself, by which he promised to "pay to the plaintiff or his order, &c. Upon non affumpfit "a verdict was given for the plaintiff, and entire damages. And it was "moved in arreft of judgment, that this note was not a bill of exchange "within the custom of merchants, and therefore the plaintiff, having de"clared upon it as such, was wrong; but that the proper way in fuch "cafes is to declare upon a general indebitatus affumpfit for money "lent, and the note would be good evidence of it.
"But it was argued by Sir Bartholomew Shower, the laft "Michaelmas term, for the plaintiff, that this note being payable to "the plaintiff or his order, was a bill of exchange inafmuch as by its "nature it was negotiable; and that distinguishes it from a note pay"able to I. S. or bearer, which he admitted was not a bill of exchange "because it is not affignable, nor indorfable by the intent of the fubfcriber, "and consequently not negotiable, and therefore it can not be a bill "of exchange, because it is incident to the nature of a bill of ex"change to be negotiable; but here this bill is negotiable, for if it had "been indorfed payable to I. N. 1. N. might have brought his action upon "it as upon a bill of exchange, and might have declared upon the custom of "merchants. Why then fhould it not be, before fuch indorfement, a "bill of exchange to the plaintiff himself, fince the defendant by his "fubfcription has fhown his intent to be liable to the payment of this