able to defendant `or order, grounded on the custom of merchants, in 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 cafe to fhow that promiffory notes and inland bills of exchange, before the statute 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 promife."

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 said "he remembered that at a trial upon an inland bill before Hale, the "defendant's counsel would put the plaintiff to prove the cuftom; "but Hale faid they had a hopeful point of it. Et adjørn.”

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 cafes of Horton and Coggs, Hodges and Steward, and Nicholson v. Sedgwick, (before cited). But

#hefe cafes, as before obferved, were exprefsly 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 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 ftrict 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 ufed 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 custom 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 merchants; and fuch a bill may be negotiated and affigned by cuftom, 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 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 inftrument in this cafe is not exprefsly ftated to be a promiffory note, yet it feems 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 promiffory note was not in ufe, 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 necessary 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

❝ grounded on it, though 'tis no specialty;" which last 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 circumstance 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 likewife 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."

Lawson 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 cafe of Butcher v. Swift, in B. R. it was doubted, whether a promiflory 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 mo"ney or tickets, are evidence of the receipt of money." As he had before faid that every indorsement makes a new bill, it seems 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 Crozict 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 fo 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 indorfement 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 faid bill mentioned, according to the tenor thereof. It then avers that on the 8th May 1678, the defendant according to the custom aforesaid, acknowledged himself to be indebted to one M. M. in 525. which he obliged himself and his affigns (this is probably misprinted) 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 at the defendant faw and accepted, by which acceptance ant by the usage aforesaid the

defendant became liable, &c. and in confideration thereof promifed 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 say at what place.

The next declaration on a promiffory note is in the cafe of Horton v. Coggs, 3 Levinz 296. The note is dated 1st 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 promise to pay to any perfon ar bearer, Sc.

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 indorfet 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. ufed and approved, viz. that if any merchant or other perfon using 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 whose order the fame is pay 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 fuch perfon who fubfcribed fuch note, having notice of fuch indorsement, 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 reafon 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 case of Sheppard and Bragg v. Flemyng (Mich. 5 W. and M.) Clift. Ent. 929, Indorfees v. Maker. "Whereas the faid Flemyng on 28th October 1692, at, &c. according to the "custom of merchants in that cafe 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