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« money to the plaintiff or his order; and since he hath thereby agreed that it shall be asignable over, which is by consequence that it shall be “ a bill of exchange. That there is no difference in reason between “ a note which faith, “ I promise to pay to I. S. or order," &c. and a “ note which saith, “I pray you to pay to I. S. or order,” &c. they are “ both equally negotiable, and to make such a note a bill of exchange “ can be no wrong to the defendant, because he, by the signing of the “ note, has made himself to that purpose a merchant, ( 2 Vent. 292.

Sarsfield v. Witherly) and has given his consent that his note ball be negotiated, and thereby has subjected himself to the law of merchants.”

« But Holt, chief justice, was totis viribus against the action; and « said that this could not be a bill of exchange. That the maintaining " of these actions upon such 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

freet, which

attempted in these matters of bills of exchange to give laws to Westminster Hall. That the continuing * to declare upon these notes upon the cuftom of merchants proceeded upon obftinacy and opinionativeness, fince he had always expressed his opinion against “ them, and since there was so easy a method as to declare upon a general « indebitatus assumpht for money lent, &c. As to the case of Sarsfield v. Witherly, he said he was not satisfied with the judgment of the “ king's bench, and that he advised the bringing a writ of error.

Gould, justice, said, that he did not remember it had ever been “ adjudged that a note in which the subscriber promised to pay, &c. ta « I. S. or bearer, was not a bill of exchange. That the bearer could “ not sue an action upon such a note in his own name, is without doubt ; « and fo it was resolved between Horton and Coggs, now printed in 3 « Lev. 299, but that it was never resolved that the party himself (to “ whom such note was payable) could not have an action upon the custom of merchants upon such a bill. But Holt, chief justice, answer“ed that it was held in the said case 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 damague 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 assumpsit. Holt, chief justice, said that would be true, “ if it had been void by reason of its being insensible ; but this mat“ter is sensible enough, though not fufficient in law to raise a promise ; " and therefore one cannot intend but that damages were given for “ it; and consequently 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 cases are reported upon this subject prior to the statute 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 case.

At the same term, the case of Potter v. Pearson, i lord Ray. 759, was upon a writ of error from C. B. In which the court said, “it is

a void custom, since it binds a man to pay money without any con. deration ; for the rule is, ex nudo pacto non oritur actio. And there“ fore the judgment was reversed."

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In the case of Burton v. Souter, at the next term, (2 Lord Ray. 774,) it was moved in arrest of judgment, “ that such 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 settled last term between Clerk and Martin. And of that opinion was the whole court."

The case of Williams v. Cutting, at the next term, (2 Lord Ray825. 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 so much money. 2, Upon an indebitatus assumpsit. There were several damages, but only one judgment; and it was assigned 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 reversed 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 “ such 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 subscribed by the defendant to the plaintiff for “ so much money, or promising so much money was void ; for it tended to make a note amount to a specialty. And judgment thereupon was 66 reversed in toto.

Lord Raymond does not mention this last observation of Lord Holt, but says, “ Note, all the judges held clearly that the firf count was ill,

(according to the case of Clerk v. Martin,) except Powell, justice, who doubted.

The next and last case in the books before the statute of Anne, is that of Buller v. Crips (Mich. 2 Anne, Anno 1703.) 6 Mod. 29. “ A “ note was in this form, “ I promise to pay to I. S. or order, the sum of

£s. 100, on account of wine had of him." " I. S. indorses this note 6. 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; or and a motion was in arrest of judgment, upon the authority of Marc tin and Clerk's case.

them to prove

“ But Brotherick would distinguish this cafe from that; for there w the party to whom the nats 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 asignable or negotiable by the words “or order," which amounts to a promise, or undertaking, to pay to any whom be "pould appoint, and the indorsement is an appointment to the plaintiff.

Chief justice 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 counsel would have


the “ custom; at which Hale who tried it laughed and said, They had a “ hopeful case on't. And in my Lord North’s time it was said that the “ cuftom in that case was part of the common law of England, and “ the actions since 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 protest. And the notes in question are only an invention of the goldsmiths in Lombard street, * who had a mind to make a law to bind all those that did deal with them. And sure to allow such note to carry any lien with it, were to turn a piece of paper, which is in law but evidence of a parol contract, into a specialty, and “ besides to empower one to assign that to another, which he could « not have himself; for since he to whom this note was made could “ not have this action, how can his aflignee have it? And these notes « are not in the nature of a bill of exchange ; for the reason of the cus“ tom of bills of exchange is, for the expedition of trade, and its safety; “ and likewise it hinders the exportation of noney out of the realm.

“ He said, if indorsee had brought this action against indorser, it “ might peradventure lie, fr the indorsement may be said to be tanta« mount to drawing a new bill for so much money as the note is for, ipon the person that gave the note ; or he may sue the first drawer in the name “ of the indorser, and convert the money, when recovered, to his * own use; for the indorsement amounts at least to an agreement, “ that the indorsee should sue for the money in the name of the in« dorser, and receive it to his own use. And besides, it is a good au«thority to the original drawer to pay the money to indorsee. And “ Powell justice cited one case 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 considered well the reasons why it was “ doubted here, they began to doubt too ; and the whole court seem« ed clear for staying the judgment. And at another day the chief « justice declared, that he had desired to speak with two of the most « famous merchants in London, to be informed of the mighty ill con“ sequences that was pretended would ensue by obstructing this course ; « and that they had told him, it was very frequent with them to make such 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 such a necelli“ 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 saying “ thus ; « Mr. B. pay me, or order, so much money, value to yourself; “ and figning this, and B. accepting it; or he may take the common note and say thus ; for value to yourself, pay indorsee so much; and “good. And the court at last took the vacation to consider of it.But what became of the case afterwards does not appear.

These five cases, viz. Clerk v. Martin, Petter v. Pearson, Burton s. Souter, Cutting v. Williams, and Buller v. Crips, are the only reported cafes in which the former decisions were over-ruled, and it may be observed that the four last were decided upon the authority of the first which is to be considered as the leading case; and it is in that case, therefore, that we are to look for the grounds upon which so great a change of the established law was founded. We shall however consider the reasons that are scattered among the whole, as having concurred in the formation of lord Holt's opinion. In the firft place, we find an assertion 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 reason for the affertion, or to recollect that in the case of Hill v. Lewis, upon promissory notes, he had Laid " that goldsmith's bills were governed by the same laws and customs as

si other bills of exchange,” and that the verdict in that case would be gaod if found upon the bills of exchange."

His next affertion is, “ that the maintaining these actions upon such “ 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 promiflory 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 promissory note, founded on the custom, was not more an innovation than a like action upon an inland bill of exchange. Besides, that could hardly deserve the name of innovation, which had been sanctioned by all the judges of England, on a demurrer, as was the case 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« bardfireet.” To this it may be answered that it did not amount to the setting up a specialty, because the consideration of a specialty is not examinable at law; but between immediate parties to a bill of exchange or a promissory note the defendant might always have availed himself of the want of consideration. It only amounted at most to the setting up a promissory note as a bill of exchange. The assertion 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 assignable by the custom of merchants, long before they appear to have been introduced into England.

The other aflertions of his lord ship only tend to shew a degree of irritation which derogates from the respect which the decision might otherwise deserve. The mildness of Mr. Justice Gould, forms a con- . traft with the precipitation of the chief justice. He said, “ he did “ not remember that it had ever been adjudged, that a note in which “ the subscriber promised to pay, &c. to I. S. or bearer, was not a “ bill of exchange;" and that it was never resolved, that the party “ himself, to whom such note was payable, could not have an action

upon the custom of merchants upon such a bill.”

In the case of Potter v. Pearson, it was said that “it is a void “ custom, fince it binds a man to pay money without confideration.This reason equally applies to inland bills, and is no reason why a distinction fhould be taken between them, and promissory notes payable to order. The one is as much a mercantile transaction as the other ;

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