CH. 24.
Art. 4.

3 & 4 of Anne.

the endorser to the endorsee's use; but it is observable this action by the endorser, that is, payee, against the drawer of the note, is precisely that of Clerk v. Martin &c.

11. Soon after the decisions in these cases, and some others less important, and many dictums and arguments on this subject, the English parliament enacted the 3 & 4 of Anne, before cited, chapter 20, art. 3; this statute recited, that it has been held that money notes are not negotiable, so as that the assignee may sue in his own name, and then provided for their being negotiable when payable to order or bearer &c. This statute has a very important bearing on this subject, though not absolutely considered such notes as not negotiable so as &c. It is fairly to be supposed, that if parliament understood that those decisions were wrong, above stated, it would have left them to be corrected by after decisions, and that it would not have interfered. But from the recitals in, and the enactments of that statute, it is fairly to be inferred, that parliament thought negotiable money notes were very useful in the then increasing extension of trade, and that by the strict rules of law they were not negotiable; at any rate it was doubtful if they were, and therefore it enacted a statute expressly making them negotiable as bills were. Also it will be observed, that act considered these notes not negotiable in their nature, as well as not within the custom of merchants, and so they have been generally considered since in their nature unaided by any statute, and on this ground was Mandeville v. Riddle decided. Ch. 20, a. 10, s. 16. For if the note in that case had been negotiable in its nature, and in virtue of the authority given in it, there was nothing in the statute of Virginia to take away this its negotiability. And if so, then an endorsee might have recovered against a remote endorser on a proper count, but the contrary in that case was held by the Supreme Court of the United States. And, therefore, Silver & al, indirectly disapproved of the decision made in favour of such negotiability of money notes in their nature in Dunlop v. Silver & al. by two of the judges in the Circuit Court in the district of Columbia, against the opinion of Judge Marshall, about a year before the decision in Mandeville v. Riddle. It is true in Mandeville v. Riddle, there was only indebitatus assumpsit for money had &c. which lies only between privies, the endorsee, and his immediate endorser. But if understood, the note was in its nature negotiable as a bill is, no doubt another count would have been added.

Dunlop v.

1 Cranch 367, to 461.

Malyncs 71 to 76.

・

§ 12. Malynes in his lex Mercatoria, published A. D. 1686, speaking of bills of debt among merchants, traders, and others, says expressly, that "the common law of England is directly against this course; for they say there can be no alienation

from one man to another of debts; because they are held
choses in action, and such whereof no property can pass by
assignment or alienation, and many good lawyers, as well as
merchants, do wish that there were an act of parliament made
for establishing a like course in England;" that was, to make
bills of debt negotiable there, as they were in Amsterdam, Mid-
dleborough, Hamburgh, &c. Malynes then wrote two chapters
to shew the manner of bills beyond the seas, the setting over of
bills of debt, (and his given form of one contained value re-
ceived in merchandise &c.) as to selling these bills obligatory,
as he calls them, (though he annexes no seal or witness to his
prescribed form,) and the general benefits in assigning them
being made payable to bearer. And further, Malynes pro-
posed to establish in England the usage of these bills of debt,
and so implying clearly, that about nineteen years before the
said 3 & 4 Anne they were not much used in England; he
says, also, in the Eastern countries, and sometimes in the Low
countries, they put seals to them, and then a delivery was
understood of course, and also that it was necessary to ex-
press in them what they received, whether merchandise,
money, or what kind of consideration. Pretty clearly such a
contract was new as a legal one in English practice in
the courts of law. So no ground for supposing as some
do, that this bill of debt mentioned in English books, was
the same as the English and our money notes. As the
law merchant had its rise in the civil law and in foreign
ordinances, which were long received with much reluctance in
England, this law merchant gained ground there slowly in all
respects, except in regard to foreign or outland bills of ex-
change, and matters in which foreign merchants were concern-
ed; hence, slowly in regard to inland bills, and very slowly
if at all in regard to promissory no es.
And since the 3 & 4
of Anne this law merchant has not been required to aid them;
as that statute, as Lord Mansfield observed in Grant v.
Vaughan, 3 Burr. 1516 &c., put notes payable to order or
bearer, merely upon the footing of inland bills of exchange.
Even in this case A. D. 1764, a plain inland bill is repeatedly
called a note, also a cash note: the same footing per Wil-
mot J.

13. Decisions against this doctrine, and tending to prove
promissory notes were held to be within the custom of merchants
as inland bills of exchange were.
1 Cranch 415 it is said,
we find before the statute of Anne," that it never was adjudg-
ed that a promissory note for money payable to order, and
endorsed, was not an inland bill of exchange." "But we find
that the contrary principle has been recognised in all the cases
from the time of the first introduction of inland bills and pro-

Сн. 24.

Art. 4.

CH. 24.

Art. 4.

Carth. 269,
Williams v.

A. D. 1692.

missory notes, to the first year of queen Anne; and that in one of them it had been expressly adjudged on demurrer in the king's bench, and judgment affirmed upon argument in the exchequer chamber before all the judges of the common pleas and barons of the exchequer."

14. Cases to this purpose. In this case John Pullen made his note, and thereby promised to pay £12 10s. to Jos. Williams. Williams, on a day certain; he endorsed it to Daniel Foe, and he endorsed it to the plt., Thomas Williams, a goldsmith in Lombard street, for like value received. The plt. as the last endorsee, sued the last endorser, and declared, "that the city of London is an ancient city," and on a custom in it, time out of mind, among merchants and other persons residing and exercising commerce within the realm of England, used and approved &c. stating a custom that included said note and endorsements &c., then stated the making, and endorsements of it made by said Pullen, a merchant, according to the custom of merchants, and said endorsements according to it. Notice to the drawer and his refusal to pay, whereby the deft. according to the usage and custom of merchants became liable to pay the plt., and in consideration thereof promised to pay it &c., alleging they were all persons who traded by way of merchandise &c. A frivolous plea pleaded, and the plt. demurred and had judgment in the B. R. Deft. brought error in the exchequer chamber. Objection was, that the plt. had not declared on the custom of merchants in London, or any other particular place, but had declared on a custom through all England, and if so, it is the common law, and then it ought not to be stated by way of custom; and if a custom, then stated as of a particular place, whence a venue might arise to try it; answered the custom of merchants as to bills of exchange is a part of the common law of which the judges take notice ex officio, as held in Carter v. Downish. So needless specially to state it as it is enough to say, one according to the usage and custom of merchants drew a bill &c. Hence, all stated relative to the special custom is surplusage, and the declaration good without; so held the judges, and judgment affirmed for the endorsee. There is no doubt but the law merchant is a part of the common law, and the decision in this case by all the judges must have been on the ground, that this note came within the law or custom of merchants. Yet it does not appear that this was made a question, and also the deft. who might have made this question, pleaded a frivolous plea in the B. R. Was this an adversary suit? See Hodges v. Steward; Sarsfield v. Witherly, ante s. 4.

Salk. 132,

15. Moor, a goldsmith, gave two notes payable to Lewis, Lewis.- the deft.; he Oct. 19, 1693, endorsed them in blank and

Hill & al. v.

6 Mod. 147.-2 Stra. 1175.-1 Wils. 147.

delivered them and eight others to one Zouch to whom he was indebted; he the same day delivered them to the plts., being goldsmiths, and they paying for them. Moor soon after failed, and the main question was if the plts. had seasonably demanded payment of him. And Holt C. J. held, that goldsmith's bills were governed by the same laws and customs as other bills of exchange, that every endorsement is a new bill; and that every endorser is liable as a new drawer. That by custom every endorser is only liable in default of the first drawer; that every endorsement must have convenient time to demand payment; and that the assignment of a note not payable to order, (as was the case of one of these notes) charges the endorser, not the drawer; as such a note not payable to order is not assignable; but that the words, or to his order give authority to the payee to assign by endorsement, and is the first drawer's agreement to answer it to the assignee. This case weighs but little; for in it we have only Holt's opinion, who nearly at the same time joined in the decisions in Clark v. Martin, and the other cases cited above on the other side of the question. He too in this case, Hill & al. v. Lewis, spoke only of goldsmith's bills. And as to a seasonable demand, and the liability of an endorser to his immediate endorsee on a note, one of them not made payable to order, so not negotiable. And as the plt. declared first as on a bill of exchange; 2. a mutuatus; 3. an indebitutus assumpsit for money laid out for the deft's. use, all Holt said might well have relation to the endorser's liability to his endorsee on one or more of these counts, and it is more reasonable to suppose Holt was thus to be understood, than to suppose he palpably contradicted himself in this and the other cases cited on the same subject much agitated, and all about the same time. Further, what could a note no payable to order or bearer, and so in no manner negotiable, have to do with the custom of merchants, or with the rules of law relating to a money note or bill payable to order? And there was no separation of the

notes.

CH. 24.

Art. 4.

. Garret.

16. This was an action on a note to pay sixty guineas on 4 Mod. 242, a contingency, so not within the custom of merchants on that 244, Pearson account. And so judgment for the deft., the plt. declaring on A. D. 1693. that custom; but it was said if the note had been given by way of commerce it had been good. See the declaration at large and demurrer to it; and as in Hill v. Lewes the plt. declared as on a bill of exchange. The dictum seems to have been only the saying of counsel. It does not appear 4 Mod- A. D. 1696, ern, that the judges did any thing more than give judgment Bromwick v. Lloyd. for the deft., therefore this case is not very material. See Bromwick v. Lloyd, ante s. 4 also cited, to prove notes were negotiable before the statute, but on examination there does

Сн. 24.
Art. 4.

Ld. Raym.

175. A. D.

1697. Pinck ney v. Hall.

3 Salk. 67,

Seldnith. 9 W. III.

not appear any question made or decided material to the pre-
sent purpose.
The declaration stated a special custom in
London, and a note made according to it to pay £26 10s. 9d.
on demand to the plt. not said to order or bearer. Plea was,
the deft. lived at Brentford and not at London. Plt. de-
murred, because the deft. traversed matter not traversable,
and because it tended to the general issue &c. Judgment of
course for the plt. on the pleadings.

§ 17. The deft. gave his note for himself and partner, joint merchants, to Hutchins or his order. He endorsed it to the plt. He declared on the custom of England to which the deft. demurred: 1. Because the declaration being by the custom of England &c. was ill, for the custom of England is the law of England, which the judges notice ex officio: 2. Other objections not material &c. Judgment for the plt. ; this too of course was on the pleadings.

$18. If a bill be made payable to A or bearer, the bearer Nicholson v. must sue in A's name &c. (old notion.) "But if made payable to A or order, an assignee may sue in his own name, because the order must be made by endorsement or the like, to shew the drawer's consent;" same case 1 Ld. Raym. 180, where it is said a goldsmith made a note promising to pay one Mason or to bearer £100, and Mason delivered it to the plt. for £100 value received. Held as above. The only point the court had to decide in this case was, as the law then was, that the bearer could not sue in his own name; and it is hardly to be supposed that the court, as a court, gave a formal opinion upon a contract to order not before it.

3 Salk. 67, 68, Jordan v. Barloe.

12 W. III.

3 Salk. 68, Williams v. Field.

5 W. III,

Hodges v.
Steward.

19. In this case Salkeld states, that a bill drawn payable to W. R. or order, is within the custom of merchants, and may be negotiated and assigned by the custom and the contract of the parties; otherwise if to bearer, and cites Hodges v. Steward. A bill is mentioned in this case and not a note.

§ 20. Ruled, that where a bill is drawn payable to W. R. or order, and he endorses it to B, and he to C, and he to D, D may sue any of the endorsers, because every endorsement is a new bill, and implies a warranty by the endorser that the money shall be paid. In this case also the report is as to a bill. And 3 Salk. 68, 69, decided if a plt. declare on a custom for the bearer to bring the action, and the deft. demur and does not traverse the custom, the plt. must have judgment. Here was judgment merely on the pleadings against the rule the bearer could not sue. The plt. it will be observed in some of the prior cases recovered on this principle; where he declared on a special custom in London and the deft. did not traverse it. This was enough to entitle the plt. to judgment, though on proper pleadings he could not have

had it.