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"money to the plaintiff or his order; and fince he hath thereby agreed "that it fhall be affignable over, which is by confequence that it shall be "a bill of exchange. That there is no difference in reafon between
a note which faith, "I promise to pay to I. S. or order," &c. and a "note which faith, "I pray you to pay to L. S. or order," &c. they are "both equally negotiable, and to make fuch a note a bill of exchange " can be no wrong to the defendant, because he, by the figning of the "note, has made himself to that purpose a merchant, (2 Vent. 292. "Sarsfield v. Witherly) and has given his confent that his note fball be ne"gotiated, and thereby has fubjected himself to the law of merchants."
"But Holt, chief justice, was totis viribus against the action; and "faid that this could not be a bill of exchange. That the maintaining "of these actions upon fuch notes, were innovations upon the rules of the "common law; and that it amounted to a new fort of Specialty unknown to the "common law, and invented in Lombard Street, which attempted in these mat"ters of bills of exchange to give laws to Westminster Hall. That the continuing "to declare upon thefe notes upon the custom of merchants proceeded upon obftina
and opinionativeness, fince he had always expreffed his opinion against "them, and fince there was fo eafy a method as to declare upon a general "indebitatus affumpfit for money lent, &c. As to the cafe of Sarsfield "v. Witherly, he faid he was not fatisfied with the judgment of the "king's bench, and that he advised the bringing a writ of error.
"Gould, juftice, faid, that he did not remember it had ever been "adjudged that a note in which the fubfcriber promised to pay, &c. to "I. S. or bearer, was not a bill of exchange. That the bearer could "not fue an action upon fuch a note in his own name, is without doubt; " and fo it was refolved between Horton and Coggs, now printed in 3 "Lev. 299, but that it was never refolved that the party himself (to "whom fuch note was payable) could not have an action upon the "custom of merchants upon fuch a bill. But Holt, chief justice, answer"ed that it was held in the faid cafe of Horton v. Coggs, that such a "note was not a bill of exchange within the custom of merchants. "And afterwards in this Easter term it was moved again, and the "court continued to be of opinion against the action. And then "Mr. Branthwaite for the plaintiff urged, that if this note was not "a bill of exchange within the custom of merchants, then the pro"mise founded upon it was void; and then it could not be intended "that any damage was given by the jury for the breach of it, but all "the damages must be intended to have been given upon the general "indebitatus affumpfit. Holt, chief juftice, faid that would be true, "if it had been void by reafon of its being infenfible; but this mat❝ter is fenfible enough, though not fufficient in law to raise a promise;
"and therefore one cannot intend but that damages were given for "it; and confequently that judgment must be arrested. And judg"ment was given quod querens nil capiat per billam, &c. by the opi"nion of the whole court."
As four other cafes are reported upon this subject prior to the ftatute of Anne, all of which were dependant upon this of Clerk and Martin, it may be proper to notice what fell from the court in each, before any comments are made on that cafe.
At the fame term, the cafe of Potter v. Pearfon, 1 lord Ray. 759, was upon a writ of error from C. B. In which the court faid, "it is « a void custom, fince it binds a man to pay money without any conf "deration; for the rule is, ex nudo pacto non oritur actio. And there"fore the judgment was reversed."
In the case of Burton v. Souter, at the next term, (2 Lord Ray. 774,) it was moved in arreft of judgment, "that fuch a note is not within "the custom of merchants, but they ought to declare upon a mutuatus "and give the note in evidence, as it was fettled laft term between Clerk "and Martin. And of that opinion was the whole court.”
The cafe of Williams v. Cutting, at the next term, (2 Lord Ray. 825. Farr. 154.) was another writ of error from the C. B. There were two counts: 1, on the custom of merchants, declaring upon a note given by the defendant to the plaintiff promising to pay him fo much money. 2, Upon an indebitatus affumpfit. There were feveral damages, but only one judgment; and it was affigned for error that the count upon the custom of merchants was void; and therefore there being one entire judgment, all was void, and judgment ought to be reverfed in toto. And the cafe of Clerk and Martin, was quoted as an authority in point.
The court were all of opinion that, "if one of the declarations was "fuch on which no damages ought to be recovered, it would be bad." And per Holt, as to that point he had "proposed it to all the judges, and "that they were all of opinion that a declaration upon the custom of
merchants upon a note fubfcribed by the defendant to the plaintiff for "fo much money, or promising so much money was void; for it tend"ed to make a note amount to a specialty. And judgment thereupon was "reverfed in toto."
Lord Raymond does not mention this last observation of Lord Holt, but fays, "Note, all the judges held clearly that the firß count was ill,
(according to the case of Clerk v. Martin,) except Powell, juftice, who “doubted."
The next and laft cafe in the books before the ftatute of Anne, is that of Buller v. Crips (Mich. 2 Anne, Anno 1703.) 6 Mod. 29. “ A "note was in this form, "I promife to pay to I. S. or order, the fum of £. 100, on account of wine had of him." "I. S. indorfes this note "to another; the indorfee brings the action against him that drew the "note, and declares upon the custom of merchants, as upon a bill of exchange; "and a motion was in arreft of judgment, upon the authority of Mar"tin and Clerk's cafe.
"But Brotherick would diftinguish this cafe from that; for there "the party to whom the note was originally made brought the action, but "here it is by indorfee; and he that gave this note, did, by the tenor "thereof, make it affignable or negotiable by the words "or order," "which amounts to a promife, or undertaking, to pay to any whom be "should appoint, and the indorsement is an appointment to the plaintiff.”
"Chief juftice Holt. I remember when actions upon inland bills "of exchange did first begin; and there they laid a particular custom "between London and Bristol, and it was an action against the ac
ceptor. The defendant's counfel would have put them to prove the "custom; at which Hale who tried it laughed and faid, They had a "hopeful cafe on't. And in my Lord North's time it was faid that the "cuftom in that cafe was part of the common law of England, and "the actions fince became frequent as the trade of the nation did in"crease; and all the difference between foreign and inland bills is, "that foreign bills must be protested before a public notary, before "the drawer may be charged; but inland bills need no proteft. And the "notes in question are only an invention of the goldfmiths in Lombard Street, who had a mind to make a law to bind all those that did deal with them. And "fure to allow fuch note to carry any lien with it, were to turn a piece of pa "per, which is in law but evidence of a parol contract, into a specialty, and " befides to empower one to affign that to another, which he could "not have himself; for fince he to whom this note was made could "not have this action, how can his affignee have it? And these notes "are not in the nature of a bill of exchange; for the reafon of the cuf"tom of bills of exchange is, for the expedition of trade, and its fafety; " and likewise it hinders the exportation of money out of the realm.
"He faid, if indorfee had brought this action against indorfer, it "might peradventure lie, for the indorsement may be faid to be tanta"mount to drawing a new bill for fo much money as the note is for, upon the
"perfon that gave the note; or he may fue the first drawer in the name "of the indorfer, and convert the money, when recovered, to his own ufe; for the indorsement amounts at least to an agreement, "that the indorfee should fue for the money in the name of the in"dorfer, and receive it to his own ufe. And befides, it is a good au"thority to the original drawer to pay the money to indorfee. And "Powell justice cited one cafe where a plaintiff had judgment upon "a declaration of this kind in the common pleas; and that my lord "Treby was very earnest for it, as a mighty conveniency for trade; "but that when they had confidered well the reasons why it was " doubted here, they began to doubt too; and the whole court feem"ed clear for staying the judgment. And at another day the chief "juftice declared, that he had defired to speak with two of the most "famous merchants in London, to be informed of the mighty ill con"sequences that was pretended would enfue by obstructing this course ; " and that they had told him, it was very frequent with them to make “fuch notes, and that they looked upon them as bills of exchange, and that they had been used for a matter of thirty years; and that not only notes "but bonds for money, were transfered frequently, and endorsed as "bills of exchange. Indeed I agree a bill of exchange may be made "between two persons without a third; and if there be fuch a neceffi"ty of dealing that way, why do not dealers use that way which is "legal? and may be this; as if A. has money to lodge in B,'s "hands, and would have a negotiable note for it, it's only faying "thus; « Mr. B. pay me, or order, fo much money, value to yourself;" "and figning this, and B. accepting it; or he may take the common "note and fay thus; for value to yourself, pay indorfee so much; and "good. And the court at last took the vacation to confider of it." But what became of the cafe afterwards does not appear.
These five cafes, viz. Clerk v. Martin, Potter v. Pearfon, Burton v. Souter, Cutting v. Williams, and Buller v. Grips, are the only reported cafes in which the former decifions were over-ruled, and it may be obferved that the four laft were decided upon the authority of the firft which is to be confidered as the leading cafe; and it is in that cafe, therefore, that we are to lock for the grounds upon which fo great a change of the established law was founded. We fhall however confider the reafons that are scattered among the whole, as having concurred in the formation of lord Holt's opinion. In the first place, we find an affertion of his lordship, in Clerk v. Martin, "that this "note could not be a bill of exchange," but he seems to have been too much irritated at that time to give a reafon for the affertion, or to recollect that in the cafe of Hill v. Lewis, upon promiffory notes, he had faid "that goldsmith's bills were governed by the fame laws and cuftoms as
other bills of exchange," and that the verdict in that cafe would be good "if found upon the bills of exchange."
His next affertion is, "that the maintaining these actions upon fuch "notes, were innovations upon the rules of the common law."
But if, as we have shown, the custom of merchants is a part of the common law; if promiffory notes had always, from the time of their first introduction, been adjudged to be as much within the custom of merchants, as inland bills of exchange, then an action on a promiffory note, founded on the cuftom, was not more an innovation than a like action upon an inland bill of exchange. Befides, that could hardly deserve the name of innovation, which had been sanctioned by all the judges of England, on a demurrer, as was the cafe in Williams and Williams.
His next affertion is, "that it amounted to the setting up a new fort of Specialty, unknown to the common law, and invented in Lom"bard freet." To this it may be answered that it did not amount to the setting up a specialty, because the confideration of a specialty is not examinable at law; but between immediate parties to a bill of exchange or a promiffory note the defendant might always have availed himself of the want of confideration. It only amounted at most to the setting up a promiffory note as a bill of exchange. The affertion that promiffory notes were invented in Lombard street, is certainly not correct, for Malynes mentions them as in use in foreign countries, and as being affignable by the custom of merchants, long before they appear to have been introduced into England.
The other affertions of his lordship only tend to fhew a degree of irritation which derogates from the respect which the decision might otherwise deserve. The mildness of Mr. Juftice Gould, forms a contraft with the precipitation of the chief juftice. He faid, "he did "not remember that it had ever been adjudged, that a note in which "the fubfcriber promised to pay, &c. to I. S. or bearer, was not a "bill of exchange ;" and that it was never refolved, that the party "himself, to whom fuch note was payable, could not have an action "upon the custom of merchants upon fuch a bill."
In the case of Potter v. Pearfon, it was faid that "it is a void "cuftom, fince it binds a man to pay money without confideration." This reafon equally applies to inland bills, and is no reason why a distinction fhould be taken between them, and promiffory notes payable to order. The one is as much a mercantile tranfaction as the other;