APPENDIX. NOTE (A.) case. The principal question, then, is, whether this action could have been supported in England before the statute of Anne. THE question of liability of a remote indorser admitted that the act did not affect the present of a promissory note, in Virginia, came before the court below about a year before their decision in the present case. It was in the case of Dunlop v. Silver and others, argued at July term, 1801, in Alexandria. The court took the vacation to consider the case, and examine the law, and, at the succeeding term, judgment was rendered for the plaintiff by Kilty, Chief Judge, and Cranch, Assistant Judge, contrary to the opinion of Judge Marshall." The case was this; James Cavan made a promissory note, by which he promised to pay to Silver et al. or order, sixty days after date, 600 dollars for value received, negotiable at the bank of Alexandria. Silver et al. indorsed the note to Downing and Dowell in these words, "pay the contents to Downing and Dowell," who indorsed, "pay the contents to John Dunlop or order." Dunlop had obtained judgment on the note against Cavan, the maker, who was taken upon the execution, and took the oath of an insolvent debtor. The declaration had two counts. 1st. A special count stating the making and indorsing the note, the suit, judgment, execution and insolvency of Cavan, by reason whereof the defendant became liable, &c. 2d. Indebitatus assumpsit for money had and received. The plea was non assumpsit, and a verdict was taken for the plaintiff, subject to the opinion of the court upon the point, whether the holder can maintain an action against the remote indorser of a promissory note. I. In order to ascertain how the law stood before that statute it may be necessary to examine how far the custom of merchants, or the lex mercatoria, was recognized by the courts of justice, and by what means the common law forms of judicial proceedings were adapted to its principles. A distinction seems to have been made very early between the contracts of merchants, (especially of foreign merchants,) and those of other people. Nearly six hundred years ago, we find their "old and rightful customs protected by the great charter of English liberties. (Magna Charta, c. 30.) Peculiar privileges were also granted them more than 500 years ago, by the statute of Acton Burnel de mercatoribus, 11 Edw. I. and the statute of merchants, 13 Edu 1. And in the reign of Edw. III. many statutes were made for their encouragement, in some of which, particularly 27 Edw. III. c. 19 & 20, the law merchant is expressly recognized. In the 13 Edw. VI. 9, 10, (cited by Molloy, book 3, c. 7, § 15,) it is said that "a merchant stranger made suit before the king's privy council, for certain bales of silk feloniously taken from him, wherein it was moved that this matter should be determined at common law; but the Lord Chancellor answered, that this suit is brought by a merchant who is not bound to sue accordThe statute 3 & 4 Ann. c. 9, respecting promising to the law of the land, nor to tarry the trial sory notes is not in force in Virginia; but there of twelve men.' is an act of assembly, 1786, c. 29, by which it is enacted, that "an action of debt may be maintained upon a note or writing, by which the person signing the same shall promise or oblige himself to pay a sum of money, or 368*] quantity of tobacco, to *another;" and that "assignments of bonds, bills and promissory notes, and other writings obligatory, for payment of money or tobacco, shall be valid; and an assignee of any such may thereupon maintain an action of debt in his own name; but shall allow all just discounts, not only against himself but against the assignor, before notice of the assignment was given to the defendant." It will be observed that this act gives no action against the indorser, or assignor, nor does it make any distinction between notes payable to order, and those payable only to the pavee. Hence, perhaps, it may be inferred that it left such instruments as the parties themselves by the original contract had made (or intended to make) negotiable, to be governed by such principles of law as may be applicable to those instruments. At any rate, it seemed to be The custom of merchants is mentioned in 34 H. VIII. cited in Bro. Abr. tit. Customs, pl. 59, where it was pleaded as a custom between merchants throughout the whole realm, and the [*369 plea was adjudged bad, because a custom throughout the whole realm was the common law. And for a long time it was thought necessary to plead it as a custom between merchants of particular places, viz., as a custom among merchants residing in London and merchants in Hamburgh, &c. By degrees, however, the courts began to consider it as a general custom. Co. Litt. 182, 2 Inst. 404. And in the time of James I. Ch. J. Hobart, in the case of Vanheath v. Turner, Winch, 24, said, that "the custom of merchants is part of the common law, of which the judges ought to take notice." It was still, however, deemed necessary to set forth the custom specially; and in that form the precedents continued for some time after. Indeed the pleadings continued in that form long after the courts had decided it to be unnecessary. Lord Coke, in his Commentary on Littleton, (first published in 1628,) folio 182. a. speaking of the lex mercato ria, says, "which, as hath been said, is part of | tion was again made about twenty years afterthe laws of this realm." See also 2 Inst. 404. But after this, in the year 1640, in Eaglechild's Case, reported in Hetly, 167 and Lit. Rep. 363. 6 Car. I. it was said to have been ruled in B. R. | that upon a bill of exchange between party and party who were not merchants, there cannot be a declaration upon the law merchant; but there may be a declaration upon assumpsit, and give the acceptance of the bill in evidence.' This decision seemed to confine the operation of the law merchant, not to contracts of a certain description, but to the persons of merchants: whereas the custom of merchants is nothing more than a rule of construction of certain contracts. Jac. Law Dict. Toml. edit. tit. Custom of Merchants. Eaglechild's Case, however, was overruled in the 18 Car. II. B. R. (1666,) in the case of Woodard v. Rowe, 2 Keb. 105, 132, which was an action by the indorsee against the drawer of a bill of exchange. "The plaintiff counted on the custom and law of the realm, that if any man writes a bill to another, then if he to whom the bill is directed, do not pay for the value received by the maker, the maker of such bill should pay." "It was moved in arrest of judgment, that this count is ill, the general custom being the law; and it doth not appear to the court that there is any such law. Sed curia contra, that by the common law a man may resort to him that received the money, if he to whom the bill was directed, refuse." It was afterwards moved again that this "is only a particular custom among merchants, and not common law; but, per curiam, the law of merchants is the law of the land; and the custom is good enough generally for any man, without naming him merchant; judgment pro plaintiff, per totam curiam, and they will intend that he, of whom the value is said to be received by the defendant was the plaintiff's servant." 370*] *The same principle was, two years afterwards, recognized in an anonymous case (but believed to be Milton's Case, vide 1 Mod. 286) in the exchequer, reported in Hardres, 485, Mich. 20 Car. II. (1668,) where the plaintiff declared on the custom of England, and after verdict, Offley moved in arrest of judgment, because the plaintiff had declared that per consuetudinem Angliæ, &c. which he said was naught, because the custom of England is the law of England, and what the judges are bound to take notice of; and that therefore the consuetudo Anglia ought to have been omitted." But the chief baron said, "But for the plaintiff's inserting the custom of the realm into his declaration here, I hold that to be mere surplusage and redundancy, which does not vitiate the declaration." And again he says, "It were worth while to inquire what the course has been amongst merchants; or to direct an issue for trial of the custom among merchants in this case; for although we must in general take notice of the law of merchants; yet all their customs we cannot know but by information.' Afterwards, in declaring their opinions, the Court said "that this course of accepting bills being a general custom amongst all traders both within and without the realm, and having everywhere that effect to make the acceptor subject to pay the contents, the court must take notice of that custom.' Notwithstanding these decisions, the ques The wards, in the case of Carter v. Downish, 1 W. & M. anno 1688, 1 Shower, 127, in the exchequer, on a writ of error from the king's bench. defendant had covenanted to pay all bills which should be drawn on him in favor of the plaintiff on account of 1,000 kentles of fish, and the breach assigned was the non-payment of a certain bill. The defendants pleaded that the plaintiff by indorsement on the bill, according to the custom of merchants, appointed the payment to Herbert Aylwin or his order, who indorsed it to Tassel, to whom the defendant paid it. To this plea there was a demurrer, and joinder. One of the errors assigned was, that the defendant had not set forth a particular custom to warrant the indorsement. To which it was answered, "that the law and custom of merchants warrant the indorsement of foreign bills of exchange, and for that all the book cases on foreign bills are a proof; and that such indorsement doth really transfer the property of the money, or contents in such bills to the indorsee, and that all this law of merchants is part of the law of the land, and the judges are obliged to take notice of that as well as of any other law." And the following cases were cited: 1 Inst. 182. a. 2 Inst. 58, 204. F. N. B. 117. Reg. 135. 13 Edw. IV. 9. 4 Rep. 76, Holland's Case. Fitz. Abr. tit. Account, 127. *Lord Chief Justice Pollexfen. "Asto[*371 that of the law of merchants, I think we are bound to take notice of it, as we do of that of survivorship and account, and this is as well known." Ventris concurred, and they all inclined to reverse the judgment; but upon Tremayne's importunity, adjornatur. Three years after this, however, the point was again made, in the case of Mogadara v. Holt, 3 W. & M. 1 Show. 318, and 12 Mod. 15, 16, anno 1699, where it was held by Holt, Chief Justice, and the whole court, "that the law of merchants is jus gentium, and part of common law, and ergo, we ought to take notice of it, when set forth in pleading." And "though the plaintiff hath alleged a custom contrary to fact, yet that is but surplusage; and he needed not to have alleged a custom." Jud. pro quer. Not satisfied with these adjudications, the question was again agitated, two years afterwards, in the exchequer, on a writ of error from the king's bench, in the case of Williams v. Williams, Carth.269. Pasch, 5 W. & M. anno 1693, where the only error insisted on was, that the plaintiff had not declared on the custom of merchants in London, or any other particular place, (as the usual way is,) but had declared on a custom through all England, and if so, 'tis the common law, and then it ought not to be set out by way of custom; and if it is a custom, then it ought to be laid in some particular place from whence a venue might arise to try it. To which it was answered, that this custom of merchants, concerning bills of exchange, is part of the common law, of which the judges will take notice er officio, as it was resolved in the case of Carter v. Downish, and therefore it is needless to set forth the custom specially in the declaration, for it is sufficient to say that such a person, secundum usum et consuetudinem mercatorum, drew the bill; therefore, all the matter in the declaration concerning the special custom was merely surplusage, and the declaration good without it. was affirmed.” The judgment Similar doctrine was also held by Lord Holt, in the same term, in the case of Hodges v. Steward, 12 Mod. 37. Pasch. 5 W. & M. anno 1693. Again in Hilary term, B. R. 8 & 9 W. III. anno 1697, Pinkney v. Hall, 1 Ld. Raym. 175, the exception was taken, "that the declaration being per consuetudinem Angliæ, &c. was ill, because the custom of England is the law of England, of which the judges ought to take notice without pleading. Sed non allocatur. 372*] For though heretofore *this has been allowed, yet of late time it has always been overruled." And another exception was "that though ler mercatoria is part of the law of England, yet it is but a particular custom among merchants; and, therefore, it ought to be shown in London, or some other particular place. Sed non allocatur. For the custom is not restrained to any particular place." The same principles were, in the same term, in the common pleas, held in the case of Bromwich v. Loyd, Hilary term, 8 W. III. 2 Lutu, 1585, where Treby, Chief Justice, said, That bills of exchange at first were extended only to merchant strangers, and afterwards to inland bills between merchants trading one with another here in England; and after that to all traders and dealers, and of late to all persons, trading or not: and there was no occasion to allege any custom; and that was not denied by any of the other justices.' In 10 Wm. III. anno 1698, B. R. 1 Ld. Raym. 360. Hawkins v. Cardo, an action was brought on a promissory note made by the defendant and indorsed by the payee to the plaintiff for part only, who declared on the custom of merchants for such an indorsement. But on demurrer it was adjudged ill. "For a man cannot apportion such personal contract, for he cannot make a man liable to two actions, where by contract he is liable but to one." And Holt, Chief Justice, said, "This is not a particular local custom, but the custom of merchants, of which the law takes notice; and therefore the court cannot take the custom to be so." Judgment for defendant. Four years after this, in the case of Buller v. Crips, 2 Anne, B. R. 6 Mod. 29, anno 1702, Lord Holt said, "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 acceptor. The defendant's counsel would put them to prove 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 custom in that case was part of the common law of England, and the actions since became frequent as the trade of the nation did increase; 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." tinguish between customs of different sorts. The true distinction is between general customs (which are part of the common law) and local customs, (which are not so.) This custom of merchants is the general law of the kingdom, part of the common law, and, therefore, ought not to have been left to the jury, after it has been already settled by judicial determinations." And in the same case, p. 1228, Mr. Justice Wilmot says, "The custom of merchants is part of the law of England; and courts of law must take notice of it as such. There may indeed be some questions, depending upon customs among merchants, where, if there be a doubt about the custom, it may be fit and proper to take the opinion of merchants thereupon; yet that is only where the law remains doubtful. And even there the custom must be proved by facts, not by opinion only; and it must also be subject to the control of law." In the case of Pillans & Rose v. Van Mierop & Hopkins, 3 Burr. 1669, Lord Mansfield says, The law of merchants and the law of the land is the same. A witness cannot be admitted to prove the law of merchants. We must consider it as a point of law." Sir Matthew Hale, in his History of the Common Law of England, first published in 1713, 3d edit. p. 24, 25, speaking of the common law, as it is taken in its proper and usual acceptation, says, And besides these more common and ordinary matters to which the common law extends, it likewise includes the laws applicable to divers matters of very great moment; and though by reason of that application, the said common law assumes diverse denominations, yet they are but branches and parts of it; like as the same ocean, though it many times receives a different name from the province, shire, island, or country to which it is contiguous, yet these are but parts of the same ocean. "Thus the common law includes lex prerogativa, as it is applied with certain rules to that great business the king's prerogative; so it is called lex foresta, as it is applied under its special and proper rules to the business of forests; so it is called lex mercatoria, as it is applied under its proper rules, to the business of trade and commerce." To these authorities will be added only that of Christian, in his note to 1 Bl. Com. 75. "The lex mercatoria, or custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, *and all mercantile contracts are as [*374 much the general laws of the land, as the laws relating to marriage, or murder." This chronological list of authorities tends to elucidate the manner in which the custom of merchants gained an establishment in the courts of law, as part of the common or general law of the land; and shows that it ought not to be considered as a system contrary to the common law, but as an essential constituent part of it, and that it always was of co-equal authority as In the year 1760, in the case of Edie v. The far as subjects existed for it to act upon. The East India Company, 1 Geo. III. 2 Burr. 1226, reason why it was not recognized by the courts, Mr. Justice Foster said, Much has been said and reduced to a regular system as soon as the 373*] about the custom of merchants; but laws relating to real estate, and the pleas of the the custom of merchants, or law of merchants, crown, seems to be, that in ancient times the is the law of the kingdom, and is part of the questions of a mercantile nature, in the courts common law. People do not sufficiently dis-of justice, bore no proportion to those relating to the former subjects. Before the time of James I. we have scarcely a mercantile case in the books; and yet long before that time, the laws respecting real estates and the criminal code were nearly as well understood as they are at this day. Hence it cannot be a matter of great surprise, that the principles of commercial law which have been developed by the exigencies of modern times, should have been, by some, considered as exceptions from the general principles of the common law. The truth seems to be, that the principles of the common law have not been changed, nor innovated upon, by the introduction of those commercial principles, but that these principles have existed from the earliest times, even from the rudest state of commerce, and the only reason why we do not find them in the ancient books, is, that the circumstances had never occurred which rendered it necessary to draw them forth into judicial decision. from four old books of precedents then existing. This declaration sets forth that A. complains of B., &c. for that whereas the said A. by a certain I. C. his sufficient attorney, factor and deputy in this behalf, on such a day and year at L. at the special instance and request of the said B. had delivered to the said B. by the hands of the said I. C. to the proper use of the said B. 1107. 88. 4d. lawful money of England; for which said 1107. 88. 4d. so to the said B. delivered, he the said B. then and there to the said I. C. (then being the sufficient attorney, factor and deputy of the said A. in this behalf) faithfully promised and undertook, that a certain John of G. well and faithfully would content and pay to Reginald S. (on such a day and year, and always afterwards, hitherto the sufficient deputy, factor and attorney of the said A. in this behalf,) 443 2-3 ducats, on a certain day in the declaration mentioned. And if the aforesaid John of G. should not pay and content the said Reginald S. the said 443 2-3 ducats, at the time above limited, that then the said B. would well and faithfully pay and content the said A. 110l. 88. 4d. lawful money of England, with all damages and interest thereof, whenever he should be thereunto by the said A. requested. It then avers that the said 443 2-3 ducats were of the value of 110l. 88. 4d. lawful money of England, that John of G. had not paid the ducats to Reginald S., and that if he had paid them "to the said R., I. B. and their associates, or to either of them, then the said 443 2-3 ducats would have come to the benefit and profit of the said A. Yet the said. B. contriving the aforesaid A. of the said 110l. 88. 4d. and of *the damages and interest thereof, [*376 falsely and subtly to deceive and defraud, the same or any part thereof, to the said A. although often thereunto required, according to his promise and undertaking aforesaid, had not paid or in any manner contented, whereby the said A. not only the profit and gain which he, the said A. with the said 1107. 88. 4d. in lawfully bargaining and carrying on commerce might have acquired, hath lost; but also the said A. in his credit towards diverse subjects of our Lord the King, (especially towards R. H. and I. A. to whom the said A. was indebted in the sum of 110l. 8s. 4d. and to whom the said A. had promised to pay the same 1107. 8s. 4d. at a day now past, in the hope of a faithful performance of the promise and undertaking aforesaid,) is much injured, to his damage," &c. II. Forms of pleading often tend to elucidate This declaration seems to have been by the inthe law. By observing the forms of declara- dorsee of a bill of exchange against the drawer. tions which have from time to time been adopted For although nothing is said of a bill of exin actions upon bills of exchange, we may per- change, or of the custom of merchants, yet the haps discover the steps by which the courts facts stated will apply to no other transaction. allowed actions to be brought upon them as It appears that ducats were to be given for substantive causes of action, without alleging pounds sterling; this was in fact an exchange. any consideration for the making or accepting Again, the defendant promised to repay the them. The first forms which were used take original money advanced with all damages and no notice of the custom of merchants as creat- interest; this is the precise obligation of the ing a liability distinct from that which arises at drawer of a bill of exchange, according to the common law; but, by making use of several law merchant. Besides, the transaction, if literfictions, bring the case within the general princi- ally true as set forth in the declaration, was at ples of actions of assumpsit. The oldest form, least a very uncommon one. A. is supposed to which is recollected, is to be found in Rastell's make I. C. his attorney for the purpose of payEntries, fol. 10. (a.) under the head “action on ing 1107. to B. and to receive a promise from B. the case upon promise to pay money." Rastell that John of G. should pay to Reginald S. 443 finished his book, as appears by his preface, on ducats. And A. is also supposed to have made the 28th of March, 1564, and gathered his forms | Reginald S. his attorney for the purpose of re Another reason, perhaps, why we see so much tardiness in the courts in admitting the principles of commercial law in practice, has been the obstinacy of judicial forms of process, and the difficulty of adapting them to those principles which were not judicially established until after those forms had acquired a kind of sanctity from their long use. Much of the stability of the English jurisprudence is certainly to be attributed to the permanency of those forms; and although it is right that established forms should be respected, yet it must be acknowledged that they have in some measure obstructed that gradual amelioration of the jurisprudence of the country which the progressive improvement of the state of civil society demanded. It required the transcendent talents, and the confidence in those talents, which were possessed by Lord Mansfield, to remove those obstructions. When he ascended the bench he found justice fettered in the forms of law. It was his task to burst those fetters, and to transform the chains into instruments of substantial justice. 375*] *From that time a new era commenced in the history of English jurisprudence. His sagacity discovered those intermediate terms, those minor propositions, which seemed wanting to connect the newly developed principles of commercial law with the ancient doctrines of the common law, and to adapt the accustomed forms to the great and important purposes of substantial justice, in mercantile transactions. ceiving the ducats. Such a transaction must | aforesaid; and the plaintiff in fact saith, that certainly be very rare, especially as it was so afterwards, viz., on the 1st of September, in the much easier to have done the same thing in substance by a simple bill of exchange. In the oldest books extant in the English language on the subject of the law merchant, viz., Malynes' Lex Mercatoria written in 1622, and Marius's Advice, which appeared in 1651, it is said that regularly there are four persons concerned in the negotiating a bill of exchange. A., a merchant in Hamburgh, wanting to remit money to D. in England, pays his money to B., a banker in Hamburgh, who draws a bill on C. his correspondent or factor in England, payable to D. in England, for value received of Å. But in the declaration above recited, there are five persons concerned; and if, as is supposed, that transaction was upon a bill of exchange, the fifth person must have been an indorsee, or assignee of the bill. Another reason for supposing this to be the case, is, that Rastell has no other form of a declaration by an indorsee, although he has two by the payee, viz., one against an acceptor and one against a drawer. 377*] *In the declaration of Payee v. Acceptor, fol. 338, (a.) the foreign merchant who paid the 1,400 crowns to the drawer of the bill in France, to be remitted to the plaintiff (the payee) in England, is stated to be the plaintiff's factor; and the drawer of the bill is stated to be the factor of the defendant, (the acceptor,) so that the plaintiff, by his factor, is supposed to pay to the defendant, through the medium of the defendant's factor, the 1,400 crowns in consideration of which it is averred that the defendant in England promised the plaintiff to pay him 414. 38. 4d. lawful money of England. This declaration sets forth that whereas the plaintiff on the 10th of June, 37 Eliz., at Rochelle, in France, in parts beyond seas, by the hands of a certain T. S., then the factor of the plaintiff, at the request of a certain R. W., then the factor of the defendant, delivered and paid to the said R. W., then the factor of the defendant, to the use of the defendant, as much ready money as amounted to 1,400 French crowns, of the money of France, in parts beyond seas, at the rate of 58. 11d. lawful money of England for each French crown: And thereupon the said R. W., at Rochelle aforesaid, then delivered to the said T. S. three bills of exchange, viz., first, second and third. In the first of which bills of exchange the said R. W. requested the defendant to pay to the plaintiff at L. 4147. 38. 4d. lawful money of England, at the end of 'thirty days next after sight of that bill of exchange, (the second and third bills of exchange to the plaintiff not paid.) It then sets forth the tenor of the second and third bills, and then avers that the defendant, on the day and year first aforesaid, at the city of E. in the county of the said city, in consideration thereof, undertook, and to the plaintiff then and there and faithfully promised, that he the defendant, well and faithfully would pay to the plaintiff, to the plaintiff's use, at the city of E. aforesaid, in the county of the said city, by way of exchange, according to the usage of merchants, the aforesaid 414. 38. 4d. lawful money of England, at the end of thirty days next after sight of any of the bills of exchange year aforesaid, at, &c., the first of the said bills came to the sight of, and was then and there shown to, the defendant, yet the defendant, not regarding, &c., but contriving, &c., did not pay the said 4147. 38. 4d. &c., at the end of the said thirty days, &c. Whereby the defendant lost the benefit of trading with the said 414. 38. 4d. &c. to his damage 6007. In this declaration it will be perceived that the custom of merchants is not alleged as the foundation of the action, or the cause of liability of the defendant. Nor is it stated that the defendant accepted the bill. But the plaintiff grounds his action upon the defendant's promise to pay the amount men- [*378 tioned in the bill, in consideration of 1,400 crowns paid to his use in France; and in consideration that his factor had drawn and delivered the bills to the plaintiff's factor. This idea of factorage is probably a fiction introduced for the purpose of adapting the custom of merchants to the common law forms, and to show a sufficient consideration for the assumpsit. The question of factorage was not traversable; as the facts of drawing the bill, and the drawee's acceptance, were sufficient evidence of the drawer's being the acceptor's factor quoad hoc. This fiction might perhaps be considered as part of the custom of merchants; but, at any rate, it seems to have been considered necessary in order to create that degree of privity between the payee and the acceptor, which at that time was supposed necessary to support the action of assumpsit. Both his and the former are declarations of common law; that is, neither of them is aided by the custom of merchants, unless the custom may be considered as supporting the fiction of factorage. They show also that if privity of contract was necessary at common law to support the action of assumpsit, the law would presume a privity, or at least would presume facts which constituted a privity, between the payee and acceptor, or between an indorsee and a drawer of a bill of exchange. As in the latter declaration, the original advancer of the money to the drawer in France is presumed to be the factor of the payee, (the plaintiff,) so in the former, Reginald S., (the payee,) and I. C., the original advancer of the money, are presumed to be the factors of the plaintiff, (the indorsee.) In 1 Brownloe's Declarations, printed in 1652, p. 267, is a declaration by the payee against the acceptor, in which the acceptor is alleged to be the factor of the drawer, but the original ad vancer of the money is not stated to be the factor of the plaintiff, as in the declarations in Rastell; although it is averred that the original advancer of the money paid it to the drawer with intent that it should be paid in England by the drawer's factor (the drawee) to the plaintiff, (the payee,) which is the same thing; for if he paid with that intent, it was paid for the benefit of the payee. In the same volume, p. 269, is a declaration by payee v. drawer, in which the advancer of the money is expressly stated to be the factor of the plaintiff; but the drawee is not alleged to be the factor of the drawer. In both cases the custom is stated to be between English |