"debt that queftion exercised the judgments of the ablest men at"that time; but the authority which his opinion had in Weftminster Hall, "made others yield to him; and it was thought neceffary to refort to the "legiflature 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 respect to one ought alfo to prevail as to the "other. Such is the general tendency of the cafes fince lord Mans"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 strong "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 ftrong 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 thould 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 custom 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 "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 promise to pay to any other perfon, &c. or his order, or unto bearer, any fum of money, &c. "shall be taken and con"frued 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, shall 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 such sum 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 observed, 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 say that such notes "hall 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 itfelf, but to inftruct the judges how they should contrue 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 statute 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,

would lie, and the note would be good evidence of it. His objections were only to the form of the action, and not to the liability of the parties.

A promiffory note was always as much a mercantile inftrument as an inland bill of exchange, and there certainly feems to be more evidence that the former is within the custom of merchants than the latter, and that it was fo at an earlier period on the continent of Europe, from whence it was introduced into England; and when introduced it came attended with all the obligations annexed which the cuftom had attached to it.

We fometimes, in modern books, meet with an affertion that a promiffory note was not negotiable at common law; this may be true, because a promiffory note was not known at common law, if from the term common law we exclude the idea of the custom of merchants. It was a mercantile inftrument introduced under the cuftom of merchants. But if the custom of merchants is confidered, as it really is, a part of the common law, then the affertion that a promiffory note was not negotiable at the common law, is not correct.

VIII. In the prefent cafe of Dunlop v. Silver, it is not neceffary to enquire whether a promiffory note, while it is confined to the original parties, can be confidered as a bill of exchange within the custom of merchants, although the authorities already cited fhow it to have been fo adjudged; but it is fufficient if it become fo by being indorsed. It has already been obferved that it has never been decided that an indorfed promiffory note is not a bill of exchange, or a negotiable inftrument, under the cuftom of merchants, but that the contrary has been folemnly adjudged, and has been fettled law for more than at century.

One of the counts in the prefent cafe is for money had and received; and the evidence produced is a promiffory note made by Cavan, payable to the defendants or order, by them indorfed to Downing and Dowell, and by them to the plaintiff. The note was in due time protefted, as an inland bill of exchange, for non-payment, and due notice given to the defendants. So that every step was taken which would have been neceffary to charge the defendants as drawers, or indorfers of an inland bill.

The indorsement of the defendants is evidence of money received by them from the intermediate indorfers, and the only question is, whether the money, fo received, is for the ufe of the plaintiff. The

folution of this question depends upon the nature of the contract which the defendants entered into by their indorsement. Lord Holt himself always admitted that every indorsement was the drawing of a new bill; and even in the cafe of Buller v. Crips, he admits that the indorsement of a promiffory note is the drawing of a bill on the maker in favour of the indorfee, and that the indorfee may maintain an action against the indorfer upon the custom of merchants. This principle, which fo far from being denied, has always been recognized in the fubfequent cafes, Chitty 121, 4 T. R. 149, decides the nature of the engagement which the defendants entered into by their indorfement. It was that of the drawer of an inland bill of exchange, whofe obligation as fuch is well ascertained by the custom of merchants. The plaintiff does not claim as affignee at common law, but as indorsee under the law merchant; by which law the defendants are clearly liable as drawers of the bill to pay the money to any indorfee, holder of the bill; and where the plaintiff has either an equitable or legal right to money received by the defendant, he may recover in an action for money had and received. The defendants, then, having received money (which they are clearly not entitled to hold, for it is admitted that the intermediate indorfer would be entitled to recover it against them) and being, by the terms of their contract, as conftrued by the cuftom of merchants, liable to the plaintiff, are answerable in an action for money had and received. We have seen that in the old declarations upon bills of exchange, the custom of merchants is not alleged, and yet the courts prefumed that the advancer of the money was the factor of the plaintiff, through whom the plaintiff is fuppofed to pay the money to the defendant. In the cafe of Woodward and Row, before cited, the court said exprefsly that they would "in"tend that he, of whom the value is faid to be received by the de"fendant, was the plaintiff's fervant." Upon the fame principle the intermediate indorfer is to be prefumed to be the fervant of the plaintiff in the prefent case.

The indorfer of a promiffory note, or bill of exchange, when he receives the money from the indorfee, holds it in truft to be re-paid to the holder of the bill or note, if he fhall fail to obtain it from the acceptor or maker, after ufing due diligence, and giving proper notice. When this contingency has happened, the trust becomes abfolute, and it is against confcience if the indorfer refuses to pay the money to whom of right it belongs.

The argument on the part of the defendants in this action is, that as a promiffory note is not an inftrument negotiable by the custom of merchants; as the statute of Anne is not in force in Virginia, and as

the act of affembly of Virginia does not give an action against the indorfer, his engagement is only fuch as arifes at common law; which is only an implied contract to refund money which has been paid in contemplation of a confideration that has failed. That this contract exifts only between the indorfer and his immediate indorfee, and is fuch a chofe in action as by the common law is not affignable. That it arises only in confequence of the money paid, and is raised in favour of that perfon only from whom the money was received. That the payment of the money by the plaintiff to the intermediate indorfer raises no contract between the defendant and the plaintiff. That there is no privity between the plaintiff and defendant, whereby the plaintiff can derive any benefit from the contract made by the defendant with the intermediate indorfer; and that no action of indebitatus affumpfit will lie without fuch privity. That even fuppofing the contract of the defendant was exprefs to pay the money to the intermediate indorfer, or to his order, yet that contract would not be negotiable or affignable so as to enable the plaintiff to recover in his own name, because no confideration moved from him, and no promise is made to him; and if the promise were in fact made to him, yet it would be as to him nudum pactum.

This argument, fo far as it is neceffary to confider it, may be reduced to these five propofitions:

1. That promiffory notes are not negotiable within the custom of merchants.

2. That the contract of the indorfer is only an implied contract, grounded on the receipt of money upon a confideration that has failed.

3. That this contract is a chofe in action, not affignable.

4. That no action of indebitatus affumpfit will lie without privity.

5. That a promise in writing, without a confideration expreffed, is a nudum pactum.

The first propofition, viz. that promiffory notes are not negotiable within the custom of merchants, has been fully confidered, and seems not to be maintainable. It might therefore be deemed unneceffary to examine the argument further; but as fome of the other points are questionable, it may be worth while to notice them.