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and « a nudum pactum does not exist in the usage and law of mer"chants," nor is "the want of confideration an objection in com"mercial cafes." 3 Bur. 1669. 1 Powell on Con. 341.
The cafe of Burton v. Souter, furnishes no new reason, but relies entirely upon the cafe of Clerk v. Martin.
The cafe of Williams v. Cutting, as reported by lord Ray. 825, fhews only that Mr. Juftice Powell doubted upon the cafe of Clerk and Martin. But in Farr. 155, it appears that Holt faid, “ he had
propofed 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 specialty." 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 cafe 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 goldfmiths in Lombard-ftreet," in which he was certainly mistaken. He repeats that "to allow fuch a 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 the reafon which he gives why this cafe ought not to be distinguished from that of Clerk v. Martin, is that a man can not affign that which he has not himself. But it is not as affignee that the indorfee was intitled to his action, but as the payee of a bill of exchange; for an indorfed note is a bill drawn, by the payee of the note, upon the maker, in favour 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 cafe must fail. His lordship again aflerts that, "these notes are not " in the nature of a bill of exchange ;" and he now condefcends to give his reasons why they are not; "for the reafon of the custom of "bills of exchange is for the expedition of trade, and its fafety; and "likewise it hinders exportation of money out of the realm;" in each of which reafons he is equally unfortunate, for the expedition of trade is not more promoted, nor is its fafety more fecured by inland bills than by promiffory notes, nor is the exportation of money more prevented 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 increafing or diminishing the current coin of a nation. For payment of a fum by exchange prevents the importation of exactly the fame fum of money.
But lord Holt himself admitted that "if the indorfee had brought "this action against the indorfer, it might peradventure lie; for the ❝indorsement may be faid to be tantamount to the drawing a new bill for fo "much as the note is for, upon the perfon that gave the note; or he may fue "the first drawer in the name of the indorfer, and convert the money, "when recovered, to his own ufe; for the indorsement amounts at "leaft to an agreement that the indorfee should fue for the money in "the name of the indorfer, and receive it to his own ufe; and be"fides it is a good authority to the original drawer to pay the money "to the indorfee."
If this indorsement makes it a bill of exchange for one purpose, the reason is not eafily perceived why it fhould not be a bill of exchange for other purposes. The exprefs promise of the maker to pay the money to the indorfee feems to be at least equal to an acceptance of the bill; and, as it has been before obferved, a bill may be accepted before it is in fact drawn; 3 Bur. 1663, Doug. 284, 1 Atk. 715, (611,) Kpd 48. A bill drawn by a man on himself " is payable by him at all " events," and fuch a bill " is tantamount to an acceptance." 1 Went. fyftem of pleading, 225.
Lord Holt admits alfo that the indorfement will authorize the indorfee to fue in the name of the indorfer; hence it appears that the whole difpute was merely about the form of the action; and this renders itthe more aftonishing that he fhould have contended "totis viribus," as lord Raymond fays he did, for an exception fo clearly contrary to the justice of the cafe, efpecially as the point had been before fo folemnly fettled in the cafe of Williams and Williams. Indeed his lordfhip feems, by the latter part of the report of Buller v. Crips, to have relented a little, after his converfation with the merchants, for he agreed that a bill of exchange may be made between two perfons "without a third" by faying thus, "Mr. B. pay me, or order, fo much money, value to yourself, and signing this and B. accepting it. Or "he may take the common note and say thus, For value to yourself, pay "iudorfee fo much; and good."
This last example feems to have been precisely the cafe 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 faid before.
Hence then we find, from an examination of all the cafes before the statute of Anne, that it never was adjudged that a promiffory note for money payable to order, and indorfed, was not an inland bill of exchange. But we find that the contrary principle had been recognized in all the cafes 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, fo that it may truly be faid to have been folemnly adjudged by all the judges of England. Principles of law fo eftablished are not to be fhaken by the breath of a single judge, however great may be his learning, his talents or his virtues. That lord Holt poffeffed these in an eminent degree will never be denied; but he was not exempt from human infirmity. The report itself, in the cafe of Clerk v. Martin, fhows that, from fome cause or other, he was extremely irritated with the goldfmiths of Lombard street, and that his mind was not in a proper ftate for calm deliberation and found judgment. The fame obfervation 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 "noife and cry, that it is the ufe of Lombard Street, as if the contrary opi «nion would blow up Lombard Street) that the acceptance of fuch a note "is not actual payment." This circumftance has also been noticed by judges and others, in fome of the more modern reports. In the cafe of Grant v. Vaughan, 3 Bur. 1520, Sir Fletcher Norton and Mr. Dunning obferve that " lord Holt was peevish" 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 firft ftruggle of the merchants, (which made Holt fo 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 affumpfit, " and give these bills in evidence. But the reafons given by the judges, why no action can be brought by the holder of fuch a bill, "payable to bearer, are equally ill-founded." And in the cafe of "Brown and Harraden, 4 Term Rep. 151, lord Kenyon faid, it is not "neceffary now to confider whether or not lord Holt were right in fo "pertinaciously adhering to his opinion, before the ftatute of Anne, "that no action could be maintained on promiffory notes, as inftru"ments, but that they were only to be confidered as evidence of the
"debt: that queftion 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 neceffary to refort to the "legislature to apply a remedy." And in the fame cafe, p. 154, Buller, juftice, faid "The cafes cited by the defendant's counsel are "extremely material; for though they do not directly decide the quef❝tion, they fhew that the courts of Westminster have thought the "analogy between bills of exchange and promiffory notes fo ftrong "that the rules eftablished with refpect to one ought alfo to prevail as to the "other. Such is the general tendency of the cafes fince lord Manf"field's time. Many of the cafes alluded to by the plaintiff's coun"fel, happened before the ftatute of Anne: they only fhew the ftrong "difpofition which lord Holt manifefted on all occafions to difcourage promif"fory notes. It appears from them that lord Holt and the merchants "were perpetually difputing whether or not they should be put upon the "fame 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 univerfally confidered in the fame light as bills of ex"change. Upon that ground they applied to the legislature for relief, " and their conduct is very strong to fhew what conftruction the ftatute of "Anne ought to receive."
Lord Kenyon faid " 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 confess I fee no difference "whatever; they both make engagements of the fame 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 promiffory note." Lord Hardwicke in the cafe of Walmsley v. Child, anno 1749, 1 Vez. 346, fays, "The reason of making the ftatute 3 and 4 Anne arofe "from fome determinations, in the beginning of her reign, by Holt chief "juftice, that no action could be maintained on a promiffory note, nor "declaration thereupon, viz. Clerk v. Martin, and Potter v. Pearfon, "I Salk. 129; which cafes 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 loft." From this concurrent teftimony it is apparent, that the cafe of Clerk v. Martin was a hafty intemperate decifion of lord Holt, which was acquiefced in by the other judges, in confequence of his overbearing authority, "which made others yield to him;" and that he fo " pertinaciously" adhered to his opinion, as to render it neceffary to apply to parliament to over-rule him.
This, it is believed, is the true origin of the ftatute of Anne, which did not enact a new law, but fimply confirmed the old; the authority of which had been fhaken by the late decifion of lord Holt. This idea is confirmed by the words of the preamble of the ftatute, 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 cuftom of merchants," against the maker; and that the indorfee "could not, within the faid cuftom of merchants, maintain an ac❝tion upon fuch note" against the maker; "therefore, to the intent to 66 encourage trade and commerce," &c. Be it enacted, &c. that all notes in writing made and figned by any perfon, &c. whereby fuch perfon, &c. fhall promife to pay to any other perfon, &c. or his order, or unto bearer, any fum of money, &c. "fhall be taken and confrued to be, by virtue thereof, due and payable to any such person, &c. "to whom the fame is made payable;" "and alfo every such note pay"able to any perfon," &c. " or his order, fhall be affignable or in"dorfable over, in the fame 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 fame, in fuch manner as he might do "upon any inland bill of exchange, made or drawn according to the custom "of merchants, against the perfon, &c. who figned the fame." And that the indorfee" may maintain his action," for fuch fum of money either against the maker or any of the indorfers, "in like manner as in "cafes of inland bills of exchange." Here it may be obferved, that by ufing 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 fay that such notes "fhall be taken and con"ftrued to be due and payable," &c. expreffing thereby a command to certain perfons, without faying exprefsly that the notes fhall be due and payable, &c. for this being the law before it was not necessary to enact the thing itself, but to inftruct the judges how they should conftrue it. The mischief to be remedied was the opinion which had "been held," not any defect in the law itfelf. By comparing this act with the cafes decided prior to Clerk and Martin, it will be found to contain no principles but fuch as had been fully recognized by the courts of law. It follows, therefore, that it was paffed fimply to reftore the old order of things, which had been disturbed by lord Holt.
The only real effect of the ftatute was to alter a few words in the declaration. The old forms allege that the defendant became liable by reafon of the cuftom of merchants, the new fay that he became liable by force of the ftatute. Even lord Holt himself always admitted that an indebitatus affumpfit for money had and received, or money lent,