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“ grounded on it, though 'tis no specialty;" which last expression seems more applicable to a promissory note, than to a regular bill of exchange."
4thly. It is said that “ the defendant drew a bill, but had not paid as the money;" without naming any drawee, or a non-acceptance or non-payment by the drawee, or any other circumstance to thew that the drawer was liable to pay
5thly. The points decided are precisely those mentioned in the preceding case of Carter v. Palmer.
In the case of Crawley v. Crowther, 2 Freem. 257, (Trin, 1702,) in chancery, it was said, that « it is now likewise held, and the prac“ tice is so, that if a man gives a note for money, payable on demand, “ he need not prove any consideration.”
Lawson v. Lamb, (Hill. 12. W. 3. C. B. Anno 1700) 1 Lut. 274, was another case upon a promissory note by assignee of payee, a bankrupt, against the maker of the note. The pleadings are set 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 bank
rupt or order.
" The objection to the declaration was, that all the proceedings of “ the commissioners of bankrupt ought to be alleged at large; but by “ reason of divers precedents according to the declaration bere, judgment “per tot. cur' was given for the plaintiff.”
In Trin. term of the same year, it is said by Comyns, in his digeft, p. 191, of vol. 1, that in the case of Butcher v. Swifi, in B. R. it was doubted, whether a promiflory note to A. or order, was within the cultom of merchants, and whether the assignee could bring an action upon it in his own name. This case, it is believed, has not been reported.
In 1 Salk. 183, Ford v. Hopkins, (Hill. 2. W. 3.) lord Holt is reported to have said at nifi prius, “that goldsmiths notes to pay mo
ney or tickets, are evidence of the receipt of money." As he had before laid that every indorsement makes a new bill
, it seems to follow that an indorsement is also evidence of the receipt of money.
We have now examined all the reported cases upon promissory notes, from the time of the first introduction of inland bills, to the time of lord Holt's decision in the case of Clerke v. Martin. At least, if any
others are to be found, they have escaped a diligent search. They form a series of decisions 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 same upon promiffory notes as upon inland bills; and we find no evidence that the latter were in use before the former.
There is not a contradictory case, or even dictum, unless we confider as such the doubt expressed in the case of Butcher v. Swift cited by Comyns; but that case is not reported, and therefore it is impossible to say upon what ground the doubt was suggested. The cases upon promiffory notes and inland bills, go to establish not only their likeness in every respect, 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 usage was to declare upon a promissory note as upon an inland bill of exchange.
The first precedent of a declaration upon a promissory 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 substance 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 Crozict should make any bill of exchange, and by the faid bill should acknowledge himself to be indebted to another merchant in any sum of money to be paid to such other merchant or his order, and such merchant to whom the same should be payable, should order such sum to be paid to another merchant, and such merchant to whom the same was payable should request the merchant who acknowledged himself fo as aforesaid to be indebted, to pay such sum to such other merchant to whom he had ordered the money to be paid ; and if upon such request the merchant who acknowledged himself to be indebted in the sum in such bill and indorsement mentioned, should accept thereof, then he would become chargeable to pay the said sum to the person 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 16-8, the defendant according to the custom aforesaid, acknowledged himpelf to be indebted to one M. M. in 52s. which he obliged himself and his n lligus(this is probably misprinted) to pay to the said M. M. who by indorsement on the same 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 usage aforesaid the
defendant became liable, &c. and in consideration thereof promised to pay, &c.
There is in the same book p. 77, a declaration upon a bill of exchange at double usuance, which is probably upon an inland bill, as the custom is alleged generally among merchants, but does not say at what place.
The next declaration on a promisory note is in the case of Hortos v. Coggs, 3 Levinz 296. The note is dated ist October, 4 Jac. 2. The custom is alleged to be in London, that if any merchant or goldsmith in London should make a bill or note in writing, with his name subscribed, and thereby promise to pay to any person 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 considered as synonimous.
In the same 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 custom among merchants, &c. used and approved, viz. that if any merchant or other person using commerce, &c. make any note under his proper hand and thereby promise to pay to any other merchant, &c. in the fame note mentioned, or to his order, any sum of money at any time in such note specified; and such merchant, &c. to whom or to whose order the same is paya able, &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 said indorsement mentioned, or to his order, then such person who lubfcribed fuch note, having notice of such indorsement, is chargeable
, and for the whole time aforesaid hath been accustomed to be chargeable, to pay the sum of money in such note mentioned, to the person in such indorsement mentioned, at the time in such note limited for the payment thereof, according to the tenor of such note. It then Tets forth the facts to bring the case within the custom, by reason of which, and of the custom aforesaid, the defendant became liable, &c. and so being liable in consideration thereof promised to pay, &c.
The next precedent is in the case of Sheppard and Bragg v. Flemyng (Mich. 5 W. and M.) Clift. Ent. 929, Indorfees v. Maker. “Whereas * the said 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 same bill with his proper hand subscribed, di and by the said bill promised to pay to one George Mason or order, the
* fum of £. 40 upon the 28th day of November then next following, “ for value received, and whereas the said George Mason afterwards, « viz. on
by indorsement with his proper hand subscribed “ upon the said bill according to the usage and custom of merchants « aforesaid in that cafe used and approved, appointed the contents of « the said bill to be paid to the said William Sheppard and Joseph « Bragg, by the name of William Sheppard and company, in the said « indorfement named, whereof the said Flemyng then and there had « notice, by reason of which premises and by the custom of merchants “ in that behalf used and approved, he was liable, &c. and being so «s liable, in consideration 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 custom of merchants, by administratrix of the payee against the master, upon a promiffory note made by his fervant, dated 29th May, 1693. See also i Wentworth's system of pleading 346.
In p. 914, in the case of Dymes v. Smith ( Mich. 8, W. 3.) is a declaration on the custom, by the payee againft the master upon a like note made by the servant, 7th May 1696. And in p. 913, in the case of Wiseman v. Conyers, is another, upon the custom, by the indorsee against the maker of a promiffory note, dated 4th May 1686.
In 2 Mod. Intr. 126, is another declaration upon the custom by the indorfee against the maker of three promiffory notes, dated in 1697This declaration is precisely like a modern declaration upon a promiffory note, excepting that the note is called a bill, and is said to be made and indorsed « according to the custom of merchants," " whereby accord« ing to the custom of merchants,” the defendant became liable, and so being liable, &c.
In p. 122 is another by payee v. the maker of a promissory note calling it a “ bill or note," and setting forth the custom specially.
In every case upon a promiffory note the declaration is grounded in the custom of merchants.
Upon a review of this list 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 cases, and totally change the law as to promiffory notes: and why he fhould admit inland bills of exchange to be within the custom of merchants, and deny that privilege to promissory notes; when the same 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 cases on promissory notes. If he considered promissory notes as a new invention, when compared with inland bills of exchange, he seems 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 case of Clerk v. Martin, (Pasch. 1 Anne, B. R.) 2 lord Ray. 757. Salk. 129, upon which alone is founded the affertion in modern books « that before the statute of Anne promissory notes were not assignable or indorseable over within the custom of merchants, so 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 several promises; one count was upon a general indebita“ tus assumpsit for money lent to the defendant; another was upon " the custom of merchants as upon a bill of exchange ; and shewed that “ the defendant gave a note subscribed by himself, by which he promised to
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 arreit 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 such « cases 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 last « Michaelmas term, for the plaintiff, that this note being payable to " the plaintiff or his order, was a bill of exchange inasmuch as by its « nature it was negotiable; and that distinguishes it from a note pay6. able to I. S. or bearer, which he admitted was not a bill of exchange “ because it is not affignable
, nor indorsable by the intent of the subscriber, « 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 indorsed 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 such indorsement, a “ bill of exchange to the plaintiff himself, since the defendant by his “ subscription has town his intent to be liable to the payment of this