"of the note and requeft him to pay it to him who brings the note, "then the person who made the note was chargeable to pay it to the "bearer. And that the defendant being a goldfmith, made fuch a "note, thereby promifing to pay £. 100 to William Barlow, or the "bearer; and that Barlow delivered the note to the plaintiff, to re"ceive the money to his own ufe, in fatisfaction of . 100, due to "him by Barlow; and that the plaintif brought and showed this to "the defendant, and requested him to pay the £. 100, which he had "not done, whereby, by the cuftom, he became chargeable, and fo "being chargeable affumed to pay. After verdict for the plaintiff, it "was moved in arreft, &c. that this custom to pay to bearer was təş "general; for perhaps the goldfmith, before notice by the bearer, had 4 paid this to Barlow himself. (And this was at bar now alleged to "be the truth of the cafe.) And of fuch opinion, after divers mo"tions in Hillary term, and this term, were Pollexfen, Powell and "Rook by. Ventris being dead in the last vacation. Although upon "the trial of the caufe before Pollexfen at Guild-hall, he then held "that the action well lay, this matter being objected at the trial. Le"vins of counsel for the plaintiff."

In this cafe the only objection was that a custom to pay to bearer was too general. It feems to be admitted that Barlow himself might have brought an action upon the custom; and that a custom to pay to order or to indorfee would have been good. It is a fufficient answer to this cafe, that in the cafe of Grant v. Vaughan, 3 Bur. 1516, it was declared not to have been law, fo far as it decided that an action could not be maintained by the bearer of such a note in his own name.

The cafe of Dehers v. Harriat, (T. 2. W. and M.) 1 Show. 163, was this" A. draws a first and fecond bill of exchange payable by "himself in Dublin, to B. or order," who indorsed to the plaintiff. No question was made as to this being a bill of exchange; and yet it differs in nothing but in form from a promiflory note.

The next cafe is Hodges v. Steward, (Pafch. 5. W. and M.) reported in Comb. 204. 1 Salk. 125. 12 Mod. 36, and Holt 115. The cafe is thus fhortly stated by Comberbach. "Cafe upon a bill of exchange: "Cuftom was laid in London, that where a bill is payable to A. or "bearer, it must be paid to the indorfes. Holt, chief juftice, faid it "was repugnant: for another perfon, and not the indorfee, might "be the bearer." This feems to be the true ground of the decifion, although the reafons are variously stated by the different reporters. They all call it a bill of exchange, but in 12 Mod. 36. we are informed what kind of a bill of exchange it was, viz. A bill drawn by the

defendant on himself, payable to another or bearer. The payee indorfed it, and the indorfee as fuch, and not as bearer, brought the action, which was held not to lie; becaufe no authority was given ta the payee to indorfe, or to transfer it by indorsement. And in 1 Salk. 125, it appears that in the fame cafe a difference was taken between a bill payable to bearer, and to order; for a bill payable to "I. S. or bearer "is not affignable by the contract so as to enable the indorsee to bring "an action; because there is no fuch authority given to the party by "the first contract.” "But when the bill is payable to I. S. or order, "there an exprefs power is given to the party to affign, and the indorfer 66 may maintain an action."

It was alfo faid that although fuch an indorsement is not a good affignment of the bill fo as to charge the drawer; yet it is a good bill between the indorfer and indorfee; and the indorfer is liable to an action for the money, "for the indorsement is in nature of a new "bill." It was alfo held, (as it had been before adjudged in Milton's cafe, Hard. 485, and in Brown and London's cafe, 1 Vent. 152,) that a general indebitatus affumpfit would not lie on a bill of exchange, but that the action must be either a general indebitatus affumpfit for money bad and received, or a special action upon the cafe grounded on the custom. Upon this cafe it may be remarked that a bill drawn by a man on himself, is precifely a promiffory note in effect; and Lovelafs in his treatise on bills and notes, p. 22, exprefsly says, "that the "law confiders a promiffory note in the light of a bill drawn by a "man upon himself, and accepted at the time of drawing." Marius alfo in his advice, p. 3, fays, a bill may be by tawo perfons, as where "the drawer makes the bill payable to himself or order," fo where a man draws a bill on himself. The fame is faid by Kyd, on bills, p. 2, and Chitty, 22, 48, fays, " a bill will be valid where there is only "one party to it, for a man may draw on himself, payable to his own "order; but in such case it is faid that the inftrument is more in the ❝ nature of a promissory note, than a bill of exchange."

The next cafe is that of Hill et al. v. Lewis, (H. 5. W. and M. B. R.) 1 Salk. 132. This was an action by the holder against the indorfer of two notes fubfcribed by one Moore, a goldfmith, payable to the defendant and by him indorsed in blank, and delivered to one Zouch, to whom he was indebted. Zouch delivered them so indorsed to the plaintiffs, and received from the plaintiffs therefor other bills and fome cafh. One of the notes was payable to the defendant or order, the other was payable to the defendant without the words "or order." Moore broke and ran away; the plaintiff declared, ift, upon two bills of exchange against the indorfer; 2dly, upon a mutuatus; 3dly, upon

an indebitatus affumpfit for money laid out for the ufe of the defendant And the principal queftion was, whether the plaintiffs had used due diligence in applying to Moore for the money. Holt, chief justice, held "That goldsmiths' bills were governed by the fame laws and cuftoms as other "bills of exchange; and every indorfement is a new bill: And fo long as "a bill is in agitation, (circulation) and such indorsements are made, "all the indorfers and every of them are liable as a new drawer. That by the law generally, every indorfer is liable as the first drawer, and can "not be discharged without an actual payment; and is not difcharged "by the acceptance (receipt) of the bill by the indorfee; but by the "custom this is restrained, viz. the acceptance (receipt) is intended to "be upon this agreement, fc. that the indorfee will receive it of the "first drawer if he can, and if he can not, then that the indorfer "will answer it; as if the first drawer be infolvent at the time of the ❝indorsement, or upon demand refuses to pay it, or cannot be found. "And the indorfer is not discharged without actual payment, until "there be some neglect or default in the indorfee, as if he does not "endeavour to receive it in convenient time, and then the first "drawer becomes infolvent." "He left it to the jury to confider, "whether the time in this cafe were convenient time or not; and if "the plaintiff had convenient time to receive his money, then to find "for the defendant, otherwife for the plaintiff. And they upon con"fideration found for the plaintiff; upon which the plaintiff prayed to "take the verdict upon the indebitatus affumpfit. Et per chief justice, "You can not take the verdict upon any part of the declaration but "that to which evidence was given, and here it will be good if found upon "the bills of exchange; but if the evidence be applicable to any other part "of the declaration, you make take it upon any fuch part to which the " evidence is applicable. And because Zouch had fworn that he re"ceived the benefit of, and had been fatisfied with the bill he took of "the plaintiff, by which the defendant was discharged against Zouch, "the verdict was taken upon the indebitatus affumpfit for money laid " out for the defendant's use; and it feemeth the indorsement by the "defendant to the plaintiff was good evidence of a request to pay the "faid money to Zouch. Now, exception was taken that one bill was "payable to the defendant only, without the words "or his order," "and therefore not affignable by the indorsement; and the chief juf"tice did agree that the indorsement of this bill did not make him that "drew the bill chargeable to the indorfee; for the words "or to his "order, give authority to the plaintiff to affign it by indorsement; and'tis "an agreement by the first drawer that he would answer it to the affignee; "but the indorsement of the bill which has not the words "or to his "order" is good, or of the fame effect between the indorfer and the indorfee, to make the indorfer chargeable to the indorsee." This cafe

certainly ought to have been confidered as fettling the law upon promiflory notes. Lord Holt here admits that promiffory notes are “ go"verned by the fame laws and customs as other bills of exchange," and that if the verdict had been taken upon the count which declared upon the notes as bills of exchange it would have been good. His reafons why a note to order is affignable, viz. "that the words, or to his "order, give authority to the plaintiff to affign it by indorsement; and that "'tis an agreement by the first drawer that he would answer it to the af "fignee," are certainly good; and are the fame which were used in feveral modern cafes which will be noticed hereafter. The obfervation is also important" that the indorsement by the defendant to the plain"tiff was good evidence of a request to pay the money to Zouch." We fhall have occafion to refer to this cafe again when we come to confider the cafes of Clerk and Martin, and Buller and Crips, decided about nine years afterwards.

The cafe of Pearfon and Garret occurred in the next term anno 1693, and is reported in Comb. 227. and 4. Mod. 242. "The action was "brought upon a note for the payment of fixty guineas when the de"fendant fhould marry fuch a perfon, &c. in which the plaintiff de"clared as upon a bill of exchange fetting forth the cuftom of mer"chants," &c. This note appears by the declaration, which is stated at length 4 Mod. 242, to be dated 21st October, 4th W. and M. by which the defendant " promifed to pay to the plaintiff or his affigns fix"ty guineas in two months after the defendant should be lawfully "married to one Elizabeth Pretty."

It was objected that this was "enly an agreement founded upon a "brokage, and therefore not within the custom of merchants; nei"ther were there ever yet any precedents to pay money upon fuch a "collateral contingency." The judgment was for the defendant; and it was faid that," If the note had been given by way of commerce it had "been good; but to pay money upon fuch a contingency cannot be called "trading, and therefore not within the custom of merchants."

If any doubt could remain that the cafe of Hill and Lewis had fully fettled the law that promiffory notes were within the cuftom of merchants, that doubt must have been completely removed by the cafe of Williams v. Williams, decided at the next term in the fame year in the king's bench (viz. Pafch. 5. W. and M. Anno 1692,) Carthew 269. "The plaintiff Thomas Williams being a goldfmith in Lombard street, brought an action on the cafe against Jofeph Williams, the projector of the diving engine, and declared upon a note drawn by one

"John Pullin, by which he promised to pay .12 10 o to the faid "Jofeph Williams on a day certain; and he indorsed the note to one "Daniel Foe, who indorsed it to the plaintiff for like value received. "And now the plaintiff, as fecond indorfee, declared in this manner, "viz. " that the city of London is an ancient city, and that there is, ❝and from the time to the contrary whereof the memory of man doth "not exist, there hath been certain ancient and laudable cuftom "among merchants and other perfons refiding and exercising commerce "within this realm of England, used and approved, viz. &c. So fets forth "the custom of merchants concerning notes fo drawn and indorsed ut "fupra, by which the first indorfer is made liable as well as the fecond, "upon failure of the drawer, and then fets forth the fact thus, viz. "And whereas alfo, a certain John Pullin, who had commerce by "way of merchandizing, &c. on fuch a day, at London aforefaid, to "wit, in the parish of St. Mary le Bow, in the ward of Cheape, ac"cording to the ufage and custom of merchants, made a certain bill "or note in writing, fubfcribed with his name, bearing date, &c. " and by the said bill or note promised to pay, &c. setting forth the note; "and further, that it was indorsed by the defendant to Foe, and by roe "to the plaintiff, according to the usage and custom of merchants; and "that the drawer having notice thereof, refused to pay the money, "whereby the defendant, according to the usage and cuftom of mer"chants, became liable to the plaintiff, and in confideration thereof "promised to pay it, &c. alleging that they were all persons who "traded by way of merchandize, &c.

"To this the defendant pleaded a frivolous plea, and the plaintiff "demurred; and upon the first opening of the matter had judgment in B. "R. And now the defendant brought a writ of error in the exchequer "chamber, and the only error infifted on was, that the plaintiff had not "declared on the custom of merchants in London, or any other par«ticular place, (as the usual way is) but had declared on a custom "through all England, and if fo it is the common law, and then it ought "not to be fet out by way of custom; and if it is a cuftom, then it ought "to be laid in fome particular place, from whence a venue might arise « to try it.

"To which it was anfwéred that this cuftom of merchants con«cerning bills of exchange is part of the common law, of which the judges will take notice ex officio, as it was refolved in the cafe of "Carter v. Downish, and therefore it is needless to set forth the cuf "tom specially in the declaration, for it is fufficient to say that such "a perfon, according to the ufage and custom of merchants, drew the bill; "therefore all the matter in the declaration concerning the special