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"perfon that gave the note; or he may fue the firft 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 in"dorfer, and receive it to his own use. And befides, it is a good au"thority to the original drawer to pay the money to indorfee. And "Powell justice cited one cafe where a plaintiff had judgment upon "a declaration of this kind in the common pleas; and that my iord "Treby was very earnest for it, as a mighty conveniency for trade; "but that when they had confidered well the reafons why it was " doubted here, they began to doubt too; and the whole court feem"ed clear for staying the judgment. And at another day the chief juftice declared, that he had defired to speak with two of the most "famous merchants in London, to be informed of the mighty ill con"fequences that was pretended would enfue by obstructing this course ; "and that they had told him, it was very frequent with them to make "fuch notes, and that they looked upon them as bills of exchange, and that they had been used for a matter of thirty years; and that not only notes "but bonds for money, were transfered frequently, and endorsed as "bills of exchange. Indeed I agree a bill of exchange may be made "between two persons without a third; and if there be fuch a neceffi"ty of dealing that way, why do not dealers use that way which is "legal? and may be this; as if A. has money to lodge in B,'s "hands, and would have a negotiable note for it, it's only faying "thus; "Mr. B. pay me, or order, fo much money, value to yourself; "and figning this, and B. accepting it; or he may take the common "note and fay thus; for value to yourself, pay indorfee fo much; and "good. And the court at laft took the vacation to confider of it." But what became of the cafe afterwards does not appear.

These five cafes, viz. Clerk v. Martin, Potter v. Pearfon, Burton v. Souter, Cutting v. Williams, and Buller v. Grips, are the only reported cafes in which the former decifions were over-ruled, and it may be obferved that the four laft were decided upon the authority of the first which is to be confidered as the leading cafe; and it is in that cafe, therefore, that we are to lock for the grounds upon which fo great a change of the established law was founded. We fhall however confider the reafons that are scattered among the whole, as having concurred in the formation of lord Holt's opinion. In the first place, we find an affertion of his lordship, in Clerk v. Martin," that this "note could not be a bill of exchange," but he feems to have been too much irritated at that time to give a reafon for the affertion, or to recollect that in the cafe of Hill v. Lewis, upon promissory notes, he had faid "that goldsmith's bills were governed by the fame laws and cuftoms as

other bills of exchange," and that the verdict in that cafe would be good if found upon the bills of exchange."

His next affertion is, "that the maintaining these actions upon fuch "notes, were innovations upon the rules of the common law.”

But if, as we have shown, the custom of merchants is a part of the common law; if promiffory notes had always, from the time of their first introduction, been adjudged to be as much within the custom of merchants, as inland bills of exchange, then an action on a promiffory note, founded on the custom, was not more an innovation than a like action upon an inland bill of exchange. Besides, that could hardly deserve the name of innovation, which had been fanctioned by all the judges of England, on a demurrer, as was the cafe in Williams and Williams.

His next affertion is, "that it amounted to the setting up a new "fort of Specialty, unknown to the common law, and invented in Lom"bard freet." To this it may be answered that it did not amount to the setting up a specialty, because the confideration of a specialty is not examinable at law; but between immediate parties to a bill of exchange or a promiffory note the defendant might always have availed himself of the want of confideration. It only amounted at most to the setting up a promiffory note as a bill of exchange. The affertion that promiffory notes were invented in Lombard street, is certainly not correct, for Malynes mentions them as in use in foreign countries, and as being affignable by the custom of merchants, long before they appear to have been introduced into England.

The other affertions of his lordship only tend to fhew a degree of irritation which derogates from the refpect which the decision might otherwise deserve. The mildnefs of Mr. Juftice Gould, forms a con- . traft with the precipitation of the chief juftice. He faid, "he did "not remember that it had ever been adjudged, that a note in which "the fubfcriber promised to pay, &c. to I. S. or bearer, was not a "bill of exchange ;" and that it was never refolved, that the party "himself, to whom fuch note was payable, could not have an action "upon the custom of merchants upon fuch a bill."

In the cafe of Potter v. Pearfon, it was faid that "it is a void "cuftom, fince it binds a man to pay money without confideration." This reafon equally applies to inland bills, and is no reason why a diftinction fhould be taken between them, and promiffory notes payable to order. The one is as much a mercantile tranfaction as the other;

and «a nudum pacium 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 reafon, 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 <6 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 fhewn 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 difcrimination. 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-street," 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 indorsed note is a bill drawn, by the payee of the note, upon the maker, in fayour 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 "likewife 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 so "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,) Kyd 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 dispute was merely about the form of the action; and this renders it the more aftonishing that he fhould have contended "totis viribus," as lord Raymond fays he did, for an exception fo clearly contrary to the juftice of the cafe, especially 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 figning this and B. accepting it. "he may take the common note and fay thus, For value to yourfelf, pay. "iudorfee fo much; and good."

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This laft example feems to have been precifely 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 promissory 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 promiffory 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 established are not to be fhaken by the breath of a fingle 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 caufe or other, he was extremely irritated with the goldfmiths of Lombard ftreet, and that his mind was not in a proper ftate for calm deliberation and found judgment. The fame obfervation applies to the cafe 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

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