part of the common law of England, and the actions since became frequent as the trade of the nation did increase; and all the difference between foreign and inland bills is, that foreign bills must be protested before a public notary, before the drawer may be charged; but inland bills need no protest."

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In the year 1760 (1 Geo. III.), in the case of Edie v. The East India Company, 2 Burr. 1226, Mr. Justice Foster said, "Much has been said about the custom of merchants; but the custom of merchants or law of merchants, is the law of the kingdom, and is part of the common law." *And in the same case, p. 1228, Mr. Justice Wilmot says, "The custom of merchants is part of the law of England; and courts of law must take notice of it as such." * * * In the case of Pillans & Ross v. Van Mierop & Hopkins, 3 Burr. 1669, Lord Mansfield says, "The law of merchants and the law of the land is the same." * * *

This chronological list of authorities tends to elucidate the manner in which the custom of merchants gained an establishment in the courts of law, as part of the common or general law of the land; and shows that it ought not to be considered as a system contrary to the common law, but as an essential constituent part of it, and that it always was of co-equal authority so far as subjects existed for it to act upon. The reason why it was not recognized by the courts, and reduced to a regular system, as soon as the laws relating to real estate, and pleas of the crown, seems to be, that in ancient times, the questions of a mercantile nature, in the courts of justice, bore no proportion to those relating to the former subjects. Before the time of James I., we have scarcely a mercantile case in the books; and yet, long before that time, the laws respecting real estates and the criminal code were nearly as well understood as they are at this day.

* * *

* * **

Another reason, perhaps, why we see so much tardiness in the courts in admitting the principles of commercial law in practice, has been the obstinacy of judicial forms of process, and the difficulty of adapting them to those principles which were not judicially established, until after those forms had acquired a kind of sanctity from their long use. It required the transcendant talents, and the confidence in those talents, which were possessed by Lord Mansfield to remove those obstructions. When he ascended the bench he found justice fettered in the forms of law. It was his task to burst those fetters and to transform the chains into instruments of substantial justice. From that time a new era commenced in the history of English jurisprudence. His sagacity discovered those intermediate terms, those minor propo

sitions, which seemed wanting to connect the newly-developed principles of commercial law with the ancient doctrines of the common law, and to adapt the accustomed forms to the great and important purposes of substantial justice in mercantile transactions.

II. Forms of pleading often tend to elucidate the law. By observing the forms of declarations, which have, from time to time been adapted, in actions upon bills of exchange, we may perhaps discover the steps by which the courts allowed actions to be brought upon them as substantive causes of action without alleging any consideration for the making or accepting them. The first forms which were used take no notice of the custom of merchants as creating a liability distinct from that which arises at common law; but by making use of several fictions, bring the case within the general principles of actions of assumpsit. The oldest. form which is recoilected is to be found in Rastell's Entries fol. 10 (a), under the head, "Action on the case upon promise to pay money." Rastell finished his book, as appears by his preface, on the 28th of March, 1564, and gathered his forms from four old books of precedents, then existing. This declaration sets forth that A complains of B, &c., for that whereas the said A, by a certain I C, his sufficient attorney, factor and deputy in this behalf, on such a day and year, at L., at the special instance and request of the said B, had delivered to the said B, by the hand of the said I C, to the proper use of the said B, 110l 8 s 4d, lawful money of England; for which said 110l 8s 4d, so to the said B delivered, he the said B, then and there, to the said I C (then being the sufficient attorney, factor and deputy of the said A in this behalf) faithfully promised and undertook, that a certain John of G. well and faithfully would content and pay to Reginald S. (on such a day and year, and always afterwards, hitherto the sufficient deputy, factor and attorney of the said A in this behalf) 443 2-3 ducats, on a certain day in the declaration mentioned. And if the aforesaid John of G. should not pay and content the said Reginald S. the said 443 2-3 ducats, at the time above limited, that then the said B would well and faithfully pay and content the said A 110l 8s 4d lawful money of England, with all damages and interest thereof, whenever he should be thereunto by the said A requested. It then avers, that the said 443 2-3 ducats were of the value of 110l 8s 4d, lawful money of England, that John of G. had not paid the ducats to Reginald S. and that if he had paid them "to the said R, I, B. and associates or to either of them, then

the said 443 2-3 ducats would have come to the benefit and profit of the said A.” * * *

This declaration seems to have been by the indorsee of a bill of exchange against the drawer. For although nothing is said of a bill of exchange, or of the custom of merchants, yet the facts stated will apply to no other transaction. It appears that ducats were to be given for pounds sterling; this was in fact an exchange. Again the defendant promised to repay the original money advanced, with all damages and interest; this is the precise obligation of the drawer of a bill of exchange according to the law merchant. Besides, the transaction, if literally true, as set forth in the declaration, was, at least, a very uncommon one. A is supposed to make I. C. his attorney for the purpose of paying Iol to B, and to receive a promise from B, that John of G. should pay to Reginald S. 443 ducats. And A is also supposed to have made Reginald S. his attorney for the purpose of recovering the ducats. Such a transaction must certainly be very rare, especially, as it was so much easier to have done the same thing in substance, by a simple bill of exchange.

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In the declaration of payee v. acceptor, fol. 338a, the foreign merchant who paid the 1400 crowns to the drawer of the bill in France, to be remitted to the plaintiff (the payee), in England, is stated to be the plaintiff's factor; and the drawer of the bill is stated to be the factor of the defendant (the acceptor), so that the plaintiff, by his factor, is supposed to pay to the defendant, through the medium of the defendant's factor, the 1400 crowns, in consideration of which it is averred that the defendant in England promised the plaintiff to pay him 414 3s 4d, lawful money of England.

This declaration sets forth, that whereas, the plaintiff, on the 10th of June, 37 Eliz., at Rochelle, in France, in parts beyond seas, by the hands of a certain T. S., then the factor of the plaintiff, at the request of a certain R. W., then the factor of the defendant, delivered and paid to the said R. W., then factor of the defendant, to the use of the defendant, as much ready money as amounted to 1400 French crowns, of the money of France, in parts beyond sea, at the rate of 5s 11d, lawful money of England, for each French crown. And thereupon, the said R. W., at Rochelle aforesaid, then delivered to the said T. S. three bills of exchange, viz., first, second and third. In the first of which bills of exchange, the said R. W. requested the defendant to pay to the plaintiff at L. 4141 38 4d lawful money of England at the end of thirty days next after sight of that bill of exchange (the second

and third bills to the plaintiff not paid). It then sets forth the tenor of the second and third bills and then avers that the defend*** ant, on the day and year first aforesaid, at the city of E.

in consideration thereof, undertook and to the plaintiff then and there and faithfully promised, that he, the defendant, well and faithfully would pay to the plaintiff, to the plaintiff's use, at the City of E. aforesaid * **by way of exchange according to the usage of merchants, the aforesaid 4141 3s 4d lawful money of England, at the end of thirty days next after sight of any of the bills of exchange aforesaid; and the plaintiff in fact saith, that afterwards, viz., on the 1st of September, in the year aforesaid at &c., the first of said bills came to the sight of, and was then and there shown to, the defendant, yet the defendant not regarding, &c., but contriving, &c., did not pay the said 4141 3s 4d, &c., at the end of said thirty days, &c. * * * In this declaration, it will be perceived that the custom of merchants is not alleged as the foundation of the action or the cause of liability of the defendant; nor is it stated that the defendant accepted the bill. But the plaintiff grounds his action upon the defendant's promise to pay the amount mentioned in the bill, in consideration of 1400 crowns paid to his use in France; and in consideration that his factor had drawn and delivered the bills to the plaintiff's factor. This idea of factorage is probably a fiction, introduced for the purpose of adapting the custom of merchants to the common law forms, and to show a sufficient consideration for the assumpsit. The question of factorage was not traversable; as the facts of drawing the bill, and the drawee's acceptance, were sufficient evidence of the drawer's being the acceptor's factor quoad hoc. This fiction might, perhaps, be considered as part of the custom of merchants; but at any rate, it seems to have been considered necessary, in order to create that degree of privity between the payee and the acceptor which, at that time, was supposed necessary to support the action of assumpsit.

Both this and the former are declarations at common law; that is neither of them is aided by the custom of merchants, unless the custom may be considered as supporting the fiction of factorage. They show, also, that if privity of contract was necessary at common law, to support the action of assumpsit, the law would presume a privity or at least would presume facts which constituted a privity, between the payee and acceptor or between an indorsee and a drawer of a bill of exchange.

III. It is not ascertained exactly at what time inland bills first came into use in England or at what period they were first

considered as entitled to the privileges of bills of exchange, under the law merchant. But there was a time when the law merchant was considered as "confined to cases where one of the parties was a merchant stranger", 3 Woodeson, 109; and when those bills of exchange only were entitled to its privileges, one of the parties to which was a foreign merchant. * * And in Buller v.

*

Crips, 6 Mod. 29 (2 Ann.) Lord Chief Justice Holt said he remembered "when actions upon inland bills of exchange first began."

Perhaps Lord Holt might have been correct as to the time when actions upon inland bills first began, or rather when the first notice was taken of a difference between inland and foreign bills; but it appears probable that inland bills were in use much before Lord Holt's remembrance. * * *

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The time when inland bills and promissory notes began to be in general use in England was probably about the year 1645 or 1646. Indeed we know that to be the fact, from the cases in the books; upon examining which, we shall find, that there was no distinction made between inland bills of exchange and promissory notes; they were both called bills; they were both called notes; sometimes they were called "bills or notes." Neither the word "inland" nor the word "promissory" was at this time in use as applied to distinguish the one species of paper from the other. The term "promissory note" does not seem to have obtained a general use, until after the statute. There was no distinction made either by the bench, by the bar or by merchants, between a promissory note and an inland bill, and this is the cause of that obscurity in the reports of mercantile cases during the reigns of Charles II, James II and King William, of which Lord Mansfield complained so much in the case of Grant v. Vaughan, 3 Burr. 1525 and 1 W. Bl. 488; where he says that in all the cases in King William's time "there is great confusion; for without searching the record, one cannot tell whether they arose upon promissory notes or inland bills of exchange. For the reporters do not express themselves with sufficient precision, but use the words 'note' and 'bill' promiscuously." This want of precision is apparent enough to us who now (since the decision of Lord Holt in the case of Clerk v. Martin) read the cases decided by him before that time; but at the time of reporting them, there was no want of precision in the reporter, for there was not, in fact, and never had been suggested, a difference in law between a promissory note and an inland bill. They both came into use at the same