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and “ a nudum pacium does not exist in the usage and law of mer“ chants,” nor is the want of consideration an objection in com“mercial cafes.” 3 Bur. 1669. i Powell on Con. 341.
The case of Burton v. Souter, furnishes no new reason, but relies entirely upon the case of Clerk v. Martin.
The case of Williams v. Cutting, as reported by lord Ray. 825, shews only that Mr. Justice Powell doubted upon the case of Clerk and Martin. But in Farr, 155, it appears that Holt said, “ 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 was void;
for it tended to make a note amount to a specialiy.” It has been before thewn that this reafon was not founded in fact, and it may be further remarked that if true in point of fact, yet it would equally apply to inland bills, and therefore is no ground for a discrimination. But it appears by lord Raymond, that all the judges did not agree, for Powell doubted.
The case of Buller and Crips, differed from the others in this, that the action was brought by the first indorfee, and not by the payee of the note. Lord Holt again declares that “the notes in question are “ only an invention of the goldsmiths in Lombard-street," in which he was certainly mistaken. He repeats that “to allow such a note to “ carry any lien with it were to turn a piece of paper, which is in «s law but evidence of a parol contract, into a specialty ;” and the reason which he gives why this case ought not to be distinguished from that of Clerk v. Martin, is that a man can not afsign that which he has not himself. But it is not as asignee that the indorsee was intitled to his action, but as the payee of a bill of exchange; for an indorsed note is a bill drawn, by the payee of the note, upon the maker, in faTour of the indorfee ; and the maker accepts the bill when he figns the note, for it is no objection to the acceptance of a bill that the acceptance is made before the bill. However, if the judgment in Clerk and Martin, was against law, the foundation of lord Holt's opinion in this case must fail. His lordship again aflerts that, “these notes are not «s in the nature of a bill of exchange ;" and he now condescends to give his reasons why they are not; “ for the reason of the custom of “ bills of exchange is for the expedition of trade, and its safety ; and « likewise it hinders exportation of money out of the realm;" in each of which reasons he is equally unfortunate, for the expedition of trade is not more promoted, nor is its safety more secured by inland bills than by promissory notes, nor is the exportation of money more preYunted by the former than by the latter. Indeed it is in modern times fully admitted, that payment by bills on a foreign country has no effect either by increasing or diminishing the current coin of a nation. For payment of a sum by exchange prevents the importation of exactly the fame sum of money.
But lord Holt himself admitted that “ if the indorsee had brought “ this action against the indorfer, it might peradventure lie; for the « indorsement may be said to be tantamount to the drawing a new bill for so ~ much as the note is for, upon the person that gave the note ; or he may sue “ the first drawer in the name of the indorfer, and convert the money, “ when recovered, to his own use; for the indorsement amounts at « leaft to an agreement that the indorsee should sue for the money in “ the name of the indorfer, and receive it to his own use; and be« fides it is a good authority to the original drawer to pay the money « to the indorsee."
If this indorsement makes it a bill of exchange for one purpose, the reason is not easily perceived why it should not be a bill of exchange for other purposes. The express promise of the maker to pay the money to the indorsee seems to be at least equal to an acceptance of the bill; and, as it has been before observed, a bill may be accepted before it is in fact drawn; 3 Bur. 1663, Doug. 284, 1 Atk. 715,(611,) Kgd 48. A bill drawn by a man on himself “ is payable by him at all “ events," and such a bill " is tantamount to an acceptance.” 1 Went. System of pleading, 225.
Lord Holt admits also that the indorsement will authorize the indorsee to lue in the name of the indorfer ; hence it appears that the whole dispute was merely about the form of the action; and this renders it the more astonishing that he should have contended “ totis viribus," as lord Raymond says he did, for an exception so clearly contrary to the justice of the case, especially as the point had been before so folemnly settled in the case of Williams and Williams. Indeed his lordfhip seems, by the latter part of the report of Buller v. Crips, to have relented a little, after his conversation with the merchants, for he agreed " that a bill of exchange may be made between two persons “.without a third” by saying thus, “ Mr. B. pay me, or order, so much “ money, value to yourself; and signing this and B: accepting it. Or “ he may take the common note and lay thus, For value to yourself, pay, “ iudorsee so much; and good."
This last example seems to have been precisely the case before the court; and as the court adjourned without giving judgment, it seems
to be doubtful how they would have decided, notwithstanding what had been said before.
Hence then we find, from an examination of all the cafes before the statute of Anne, that it never was adjudged that a promisory note for money payable to order, and indorsed, was not an inland bill of exchange. But we find that the contrary principle had been recognized in all the cases from the time of the first introduction of inland bills and promifsory notes to the first year of Queen Anne, and that in one of them it had been expressly adjudged upon demurrer in the king's bench, and the judgment affirmed upon argument in the exchequer chamber, before all the judges of the common pleas and barons of the exchequer, so that it may truly be said to have been folemnly adjudged by all the judges of England. Principles of law fo established are not to be shaken by the breath of a single judge, however great may be his learning, his talents or his virtues. That lord Holt poffefled these in an eminent degree will never be denied ; but he was not exempt from human infirmity. The report itself, in the case of Clerk v. Martin, shows that, from some cause or other, he was extremely irritated with the goldsmiths of Lombard street, and that his mind was not in a proper state for calm deliberation and found judgment. The same observation applies to the case of Buller v. Crips, and is further confirmed by that of Ward and Evans, 2 lord Ray. 930, in which his lordship faid “ But then I am of opinion and always was (notwithstanding the “ noise and cry, that it is the use of Lombard street, as if the contrary opie “ nion would blow up Lombard Areet) that the acceptance of such a note « is not actual payment.” This circumstance has also been noticed by judges and others, in some of the more inodern reports. In the case of Grant v. Vaughan, 3 Bur. 1520, Sir Fletcher Norton and Mr. Dunning observe that “ lord Holt was peevi/h" in the case of Clerk and Martin, and lord Mansfield remarked that “lord Holt got « into a dispute with the city about it.” In 1 W. Bl. 487, lord Mansfield faid, « The first struggle of the merchants, (which made Holt so angry « with them,) to make inland bills in the nature of specialties, and to “ declare upon them as fuch, was certainly wrong on their parts; as " it was admitted they might declare on general indebitatus assumpfit, 6 and give these bills in evidence. But the reasons given by the “ judges, why no action can be brought by the holder of such a bill, « payable to bearer, are equally ill-founded.” And in the case of « Brown and Harraden, 4 Term Rep. 151, lord Kenyon said, it is not « necessary now to consider whether or not lord Holt were right in so “ pertinaciously adhering to his opinion, before the statute of Anne, " that no action could be maintained on promiffory notes, as inftru- ments, but that they were only to be considered as evidence of the " debt : that question exercised the judgments of the ablest men at « that time, but the authority which his opinion had in Westminster Hall, “ made others yield to him ; and it was thought necessary to resort to the « legislature to apply a remedy.” And in the same case, p. 154, Buller, justice, faid « The cases cited by the defendant's counsel are “extremely material ; for though they do not directly decide the ques“ tion, they shew that the courts of Westminster have thought the “ analogy between bills of exchange and promiffory notes fo frong " that the rules established with respect to one ought also to prevail as to the “ other. Such is the general tendency of the cases since lord Manf« field's time. Many of the cases alluded to by the plaintiff's coun“ sel, happened before the statute of Anne : they only shew the strong “ disposition which lord Holt manifested on all occasions to discourage promif“sory notes. It appears from them that lord Holt and the merchants
were perpetually difputing whether or not they should be put upon the “ same footing with bills of exchange. The merchants did not con« tend that they might recover on notes in particular cafes only, but “ that they should be universally considered in the same light as bills of ex“ change. Upon that ground they applied to the legislature for relief, “ and their conduct is very strong to fbew what construction the statute of “ Anne ought to receive."
Lord Kenyon said « it has been argued that there is an essential dif« ference between bills of exchange and promiffory notes, and that “ there are reasons why the acceptor of the one should be allowed « more time than the maker of the other; but I confefs I see no difference “ whatever ; they both make engagements of the same nature, and when the
acceptor has accepted a bill he is equally bound to be prepared to
pay on the day appointed, as the maker of a promissory note.” Lord Hardwicke in the case of Walmsley v. Child, anno 1749, 1 Vez. 346, says, “ The reason of making the statute 3 and 4 Anne arose “ from some determinations, in the beginning of her reign, by Holt chief “ justice, that no action could be maintained on a promissory note, nor “ declaration thereupon, viz. Clerk v. Martin, and Potter v. Pearson, « 1 Salk. 129 ; which cases produced the act; as the act itself recites ; “ but that act of parliament did not alter, but that still an indebitatus “ affumpfit may be brought, and the note given in evidence, or proved “ if lost.” From this concurrent testimony it is apparent, that the case of Clerk v. Martin was a hafty intemperate decision of 'lord Holt, which was acquiesced in by the other judges, in consequence of his overbearing authority, « which made others yield to him;" and that he fo « pertinaciously adhered to his opinion, as to render it necessary to apply to parliament to over-rule him.
« tion upon
This, it is believed, is the true origin of the statute of Anne, which did not enact a new law, but fimply confirmed the old; the authority of which had been shaken by the late decision of lord Holt
. This idea is confirmed by the words of the preamble of the statute, which are, “ Whereas it hath been held" that notes in writing, &c. payable to order, “ were not affignable or indorfable over, within the “ custom of merchants," and that the payee could « not maintain an ac“tion, by the custom of merchants," against the maker; and that the indorsee “could not, within the said custom of merchants, maintain an ac
such note" against the maker; “ therefore, to the intent to “ encourage trade and commerce,” &c. Be it enacted, &c. that all notes in writing made and signed by any person, &c. whereby such person, &c. fhall promise to pay to any other person, &c. or his order, or unto bearer, any sum of money, &c. ball be taken and con“frued to be, by virtue ibercof, due and payable to any such person, &c. “ to whom the same is made payable ;” “ and also every such note pay“ able to any person,” &c. “ or his order, shall be assignable or in“ dorsable over, in the same manner as inland bills of exchange are or « may be, according to the custom of merchants," and that the payee “ 'may maintain an action for the fáme, in such manner as he might do “ upin any inland bill of exchange, made or drawn according to the custom
of merchants, againit the person, &c. who figned the fame.” And that the indorfie may maintain his action,” for such fum of money either against the maker or any of the indorfers, “ in like manner as in “ cases of inland bills of exchange." Here it may be observed, that by using the words, “it hath been held,” the legislature clearly allude to certain opinions, which they carefully avoid to recognize as law. And in the enacting clause they say that such notes “hall be taken and con“strued to be due and payable,” &c. expressing thereby a command to certain persons, without saying expreisly that the notes shall be due and payable, &c. for this being the law before it was not necessary to enact the thing itself, but to instruct the judges how they should conStrue it. The mischief to be remedied was the opinion which had “ been held,” not any defect in the law itself. By comparing this act with the cases decided prior to Clerk and Martin, it will be found to contain no principles but such as had been fully recognized by the courts of law. It follows, therefore, that it was passed simply to reitore the old order of things, which had been disturbed by lord Holt.
The only real effect of the statute was to alter a few words in the declaration. The old forms allege that the defendant became liable by reason of the custom of merchants, the new say that he became liable by force of the statute
. "Even lord Holt himself always admitted that an indebitatus alumpfit for money had and received, or money lent,