custom was merely furpluffage, and the declaration good without << it.

« The judgment was affirmed.”

There cannot be a stronger cafe than this. On demurrer judgment was rendered for the plaintiff in the King's bench, which judgment was affirmed upon argument, upon a writ of error in the exchequer chamber, on the very point of the cuftom; fo that here was the unanimous concurrence of all the judges of England. This cafe, it is believed, has never been denied to be law, either before or fince the statute of Anne.

A short note of this cafe is to be found in 3 Salk. 68, by the name of Williams v. Field, in these words, "Ruled, that where a bill is "drawn payable to W. R. or order, and he indorfes it to B. who indor❝fes it to C. and he indorfes it to D. the laft indorfee may bring an action against any of the indorfers, because every indorsement is a new "bill, and implies a warranty by the indorfer that the money shall be " paid.”

The next cafe upon a promissory note is that of Bromwich v. Loyd, (Hill, 8, W. 3, C. B. anno 1696)2 Lut. 1582, where the pleadings are set forth at full length, in which the plaintiff declares that " at "London aforefaid, viz. in the parish, &c. there is a custom that if "any merchant or other person refiding and trading at London, make "any note with his proper hand fubfcribed, and thereby promise to "pay to any other perfon dwelling at London, any fum in fuch note "fpecified, then fuch person who fubfcribed fuch note, by reason thereof, and by the faid cuftom is liable to pay the money, &c. "That the defendant, 8th June 1696, refiding and dealing at London, "made a note, &c. and thereby promised to pay to the plaintiff at "London aforefaid in the parish and ward aforefaid refiding, £. 26. "10. 9 on demand, by reafon whereof, &c.

"To this the defendant pleaded that at the time of making the faid "note, he was refident at Brentford, &c. abfque hoc, that he was refi"dent at London. To which plea the plaintiff demurred, for that the ❝ defendant had traversed matter not traversable, and because it tended "to the general iffue,” &c.

It was urged for the defendant, that the cuftom was laid in St. Mary le Bow, but in fact is extended to London, and was therefore contradictory. Sed non allocatur " for per curiam, the parish is mentioned

"but in refpect of the venue, and that it was matter of neceflity to al"lege it fo."

And it was further faid for the defendant, " that there were three "things neceffary to maintain the action, viz. 1. commorancy, 2. The "making of the note, 3. Commerce between the parties; but there "is no place mentioned in the declaration where the note was "made; fed non allocatur, for it fhall be intended at the parish of St. "Mary le Bow; for it is faid, that the defendant at London aforefaid in "the parish and ward aforefaid, refiding and ufing commerce, made a "note; and therefore the whole is to be intended at the same place.

"It was also objected that the custom was unreasonable, because it took arway the proof how the money became due; but the court were of opi"nion that the cuflom was good notwithstanding this objection.

Treby, chief justice, faid in this cafe, that bills of exchange at first "were extended only to merchant frangers, trading with English "merchants, 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 perfons trading or not; and that there was no "occafion to allege any custom; and that was not denied by any of the "other juftices. And the chief justice also faid, that bills of exchange "were of fuch general ufe, and benefit, that on an indebitatus affump"fit, a bill of exchange may be given in evidence to maintain the action; "and Powell, juftice, faid, that on a general indebitatus affumpfit for "mmey received to the ufe of the plaintiff, fuch bills may be left "to the jury to determine whether it was for value received or not. "In Hill, 9 and 10, W. 3 the plaintiff had judgment by the opinion "of the whole court." This cafe is in perfect conformity to those of Hill and Lewis, and Williams and Williams.

The cafe of Pinckney v. Hall (Hill, 8 and 9, W. 3, anno 1697, B. R.) lord Raymond, 175, was by the indorfee of a promiffory note made by the defendant for himself and partner as joint merchants to Hutchins or order, and by him indorfed to the plaintiff. The declaration was on the custom of England, to which the defendant demurred.

ift. "Because the declaration being per confuetudinem Anglia, &c. "was ill, for the custom of England is the law of England, of which "the judges ought to take notice without pleading. Sed non allocatur. "For though heretofore this has been allowed, yet of late time it has always been over-ruled, and in an action against a carrier it is always "laid per confuetudinem Anglia. 2d. Though lex mercatoria is part of the

"law of England, yet it is but a particular cuftom among merchants, and "therefore it ought to be fhewn in London or fome other particular "place. Sed non allocatur; for the custom is not refrained to any parti"cular place." Two other exceptions were taken which are not material to the prefent question: but judgment was given for the plaintiff.

At the next term (Eafter 9, W. 3) 1 Lord Raymond, 180, occurred the cafe of Nicholson v. Sedgwick, reported also in 3 Salk. 67, where it is ftated to be upon a bill.

"The defendant Sedgwick, being a goldsmith, made a note in wri"ting by which he promised to pay to one Mafon, or to the bearer "thereof. 100. Mafon delivered the note to the plaintiff for £.100 "in value received," who brought the action as bearer and declared upon the "custom of merchants and others trading within this realm."

Upon non affumpfit pleaded, and verdict for the plaintiff, "it was "moved in arreft of judgment that this action could not be brought "in the name of the bearer, but it ought to be brought in the name " of him to whom it was made payable. Quod fuit conceffum per cu"riam; for the difference is, where the note is made payable to the "party or bearer, and where it is payable to the party or order; in "the latter cafe the indorfee has been allowed to bring the action in his own "name." The principal point of this case, viz. that the bearer could not maintain an action in his own name, was expressly declared not to be law, in the cafe of Grant v. Vaughan, 3 Bur. 1516.

In the fame year in the cafe of Boulton v. Hillefden, Comb. 450, it was decided that a mafter may be bound by a promiffory note made by his fervant.

Another cafe in the fame year is cited in 1 Com. Dig. 190, 191, by the name of Cromwell v. Floyd, in C. B. which does not feem to have been reported, unless it be the fame cafe with that reported in 2 Lut. 1582, by the name of Bromwich v. Loyd; which is not impoffible.

In Mich. term of the fame year, in the cafe of Woolvil v. Young, et al. 5 Mod. 367, it was held that a declaration upon a promiffory note, founded on the custom of England, was bad, because it did not allege that the defendants were commercium habentes; but it seems to admit that it would have been good if those words had been used.

In an anonymous cafe in chancery, in the fame year, reported by Ch. Baron Comyns, p. 43, it is faid that the "indorfee for a valuable

"confideration recovered in indebitatus affumpfit on this bill of ex"change, against the drawer. The drawer filed a bill in chancery "to be relieved against this judgment at law, alleging that he received "no value; and that the indorfee might refort to the indorfer for his "original claim. It was answered that the drawer might be relieved "against the payee, or any claiming as fervant or factor of, or to the

ufe of the payee: but the chancellor held that the indorfee being "an honeft creditor, and coming by this bill fairly, for the fatif"faction of a just debt, he would not relieve against him, because it "would tend to deftroy trade which is carried on every where by bills "of exchange, and he would not leffen an honeft creditor's fecurity."

It may be doubted whether this was really a bill of exchange or a promiffory note; and perhaps it is immaterial which it was, as the law had been clearly fettled to be the fame upon both. Yet if it had been a bill of exchange it feems probable that fomething would have been faid of the drawee; by which it fhould appear that the plaintiff had a right of action against the drawer; fuch as that the bill had been prefented for acceptance, and refufed; or that being accepted by the drawee, he had refused to pay, &c.

The cafe of the bank of England v. Newman, 12 Mod. 241. B. R. I lord Ray. 442, and Comyns rep. 57, was upon a promiffory note, drawn by one Bellamy, payable to Newman or bearer, who discounted it at the bank without indorfing it. Upon Bellamy's failure the bank brought fuit against Newman. But the court held him not to be liable, "for the law is, that if a bill or note be payable to one or "bearer, and he negotiates the bill and delivers it for ready money "paid to him, without any indorsement on the bill, this is a plain "buying of the bill; as of tallies, bank-bills, &c. but if it be indorsed, "there is a remedy against the indorfer."

Hawkins v. Cardy, in the next year, (Mich. 10. W. 3. B. R.) 1 Lord Raym. 360. 1 Salk. 65. Carth. 466, was alfo upon a promiffory note. "The plaintiff brought an action on the cafe upon a bill "of exchange," ( fays the reporter,)" against the defendant, and de"clared upon the custom of merchants, which he fhewed to be thus: "that if any merchant subscribes a bill, by which he promises to pay a fum "of money to another man or his order, and afterwards the perfon "to whom the bill was made payable, indorfes the faid bill for the "payment of the whole fum therein contained, or any part thereof, "to another man, the first drawer is obliged to pay the fum fo indorfed, "to the perfon to whom it is indorfed payable; and then the plaintiff "fhews that the defendant, being a merchant, fubscribed a bill of

"L.46 190 payable to Blackman or order; that Blackman indorsed "L.43 4 0 of it, payable to the plaintiff," &c.

On demurrer, the declaration was adjudged ill; " for a man can "not apportion fuch perfonal contract; for he cannot make a man "liable to two actions, where by the contract he is liable but to one." "But if the plaintiff had acknowledged the receipt of the £. 3 15 0 the "declaration had been good."

And "Holt, chief justice, said, that this is not a particular local cuf"tom, but the common custom of merchants, of which the law takes "notice."

Salkield in reporting this cafe, begins thus, "A. having a bill of "exchange upon B. indorfes part of it to I. S. who brings an action "for his part," &c. This, compared with lord Raymond's report of the cafe, fhews what has been already fo often mentioned, that no difference had yet been discovered between the law respecting promiffory notes, and that concerning inland bills of exchange. Even lord Raymond states it first to be a bill of exchange, and immediately fhows it to have been a promissory note. So glaring a contradiction could not have paffed uncorrected, if a promiffory note and an inland bill of exchange had not been confidered as the fame thing.

In this cafe it will be remarked, that upon demurrer, the court faid that this declaration, upon the custom of merchants, on a promiffory note, by the indorfee against the maker, would have been good, if the receipt of the .315 o had been acknowledged.

The next year produced the cafe of Lambert v. Oakes (Pafch 11. W. 3. B. R.) reported in 1. lord Ray. 443. 1. Salk. 127, by the name of Lambert v. Pack. 1 Salk. 126. cafe 6, Anonymous. 12 Mod. 244. and Holt 118. This cafe was clearly upon a promiffory note, although four out of the five reports of the cafe call it a bill of exchange. This circumstance shows that no difference was understood to exift at that time between a promiffory note and an inland bill of exchange; for upon this fuppofition only can we account for the extreme inaccuracy of fo many reporters upon that point. The fact of its being called a bill of exchange induces also a strong presumption of another fact which does not exprefsly appear in Lord Raymond's report of the cafe, and that is that the plaintiff grounded his action on the custom of merchants; which was at that time the only known and established form of declaring upon a promiffory note. This was then an action by the indorfee against the indorfer of a promiffory note, pay