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1. Dig. 22. 2. 4. 1
2. Traité du Con. de Change, No. 6.
3. See the pleading of Isocrates, entitled, Trapeziticus. (Isocratis Scripta omnia, edit. H. Wolfius, Basle, 1587.) In that interesting forensic argument which Isocrates puts into the mouth of a son of Sopaeus, the governor of a province of Pontus in his suit against Pasion. an Athenian banker, for the grossest breach of trust, it is stated, that the son, wishing to receive a large sum of money from his father, applied to one Stratocles. who was about to sail from Athens to Pontus, to leave his money, and take a draft upon his father for the amount. This, said the orator; was deemed a great advantage to the young man, for it saved him the risk of remittance from Pontus, over a sea covered with Lacedaemonian pirates. It is added that Stratocles was so cautious as to take security from Pasion for the money advanced upon the bill, and to whom he might have recourse if the Governor Pontus should not honor the draft, and the young Pontian should fail.
4. In 1394, the city of Barcelona by ordinance, regulated the acceptance of bills of exchange; and the use of them is said to have been introduced into western Europe by the Lombard merchants in the thirteenth century. M. Boucher says, he received from M. Legou Deflaix, a native of India, a memoir, showing that bills of exchange were known in India from the most high antiquity. But the ordinance of Barcelona is, perhaps, the earliest authentic document in the middle ages of the establishment and general currency of bills of exchange. (Consulat de la Mer, par Boucher, tom. 1. 614. 620.) M. Merlin says, the edict of Lewis XI of 1462, is the earliest French edict on the subject; and he attributes the invention of bills of exchange to the Jews, when they retired from France to Lombardy, and says, that the Italians and merchants of Amsterdam first established the use of them in France. Repertoire de Jurisprudence, tit. Lettre et Billet de Change, sec. 2.
5. Promissory notes are negotiable throughout the Union, and the endorsee can sue in his own name; and in New York, Massachusetts, Virginia, South Carolina, and most of the states, he has all the privileges of an endorsee under the law merchant. But in Vermont, New Jersey, Pennsylvania, and Kentucky, his rights under the law merchant are to be taken with some qualification, and especially in the state last mentioned. See Griffith's Law Register, passim.
6. Heylyn v. Adamson, 2 Burr. Rep. 669. Brown v. Harraden, 4 Term Rep. 148.
7. Clerke v. Martin, 2 Lord Raym. 757.
8. The pragmatic of Pope Pius V De Cambiis, as early as 1571, is mentioned by Mr. Du Ponceau, in his able and interesting Dis erlation on the Nature and Extent of the Jurisdiction of the Courts of the United, States, p. 122. as proof of the early recognition of notes as negotiable instruments within the custom of merchants. I would also refer to the appendix to 1 Cranch's Reports, for a very elaborate, painstaking, and powerful argument, in favor of the position, that at common law, and before the statute of Anne, an endorsee of a promissory note could sue a remote endorser.
9. This definition is taken from Bayley on Bills, p. 1. which is a concise, clear and accurate production. The American edition, published at Boston in 1826, is enriched with all the English and American decisions in its very copious notes.
10. Cruger v. Armstrong, 3 Johns. Cas. 5. Conroy v. Warren, ibid. 259.
11. Morris v. Lee, 2 Ld. Raym. 1396. 8 Mod. Rep. 362. Str. 629. Martin v. Chauntry, Str. 1271. Thomas v. Roosa, 7 Johns. Rep. 461.
12. Bayley on Bills, edit. Boston, 1826, p. 6.
13. Keith v. Jones, 9 Johns. Rep. 120. Judah v. Harris, 19 ibid. 144.
14. McCormick v. Trotter, 10 Serg. & Rawle, 94.
15. Dawkes v. De Lorane, 3 Wils. Rep. 207. Beardesley v. Baldwin, 2 Str. Rep. 1151. Roberts v. Peake, 1 Burr. 323.
16. Cook v. Colehan, Str. Rep. 1217. It is even held, that a note payable within two months after such a ship is paid off, is a good negotiable note, as the event is morally certain; (Andrews v. Franklin, Str. Rep. 24.) but, I should think, such a reference was not sufficiently certain, and that the case might well have been questioned, if it had not been subsequently confirmed in 1 Wils. Rep. 262. 3 ibid. 213. The numerous English and American cases all going to the support of this one general proposition, that the money mentioned in the instrument must be payable absolutely, and at all events, and not made to depend on any uncertainty or contingency, are diligently and accurately collected in Bayley on Bills. edit. Boston, 1826, p. 8-15. and Chitty on Bills. edit. Philadelphia, 1826, p. 42-50.
17. Milne v. Graham, 1 Barnw. & Cress. 192.
18. See Huberus, vol. 2. lib. 1 tit. 3. De conflictu legum, passim. Emerigon des Ass. tom. 1, ch, 4. sec. 8. has collected the principles of all the foreign jurists on the point, and poured a flood of learning over the subject. See also, Toullier's Droit Civil, tom. 10. 117, for the doctrine of continental Europe. See Robinson v. Bland, 2 Burr. Rep. 1077. Melan v. The Duke de Fitz-James, 1 Bos. & Pull. 138. Dalrymple v. Dalrymple, 2 Haggard's Rep. 54. Ferguson's Decisions in the Consistorial Court of Scotland, passim, for the doctrine of the English and Scottish Courts. See Van Reims Dyk v. Kane, 1 Gallis. Rep. 371. Slacum v. Pomeroy, 6 Cranch's Rep. 221. Warren v. Lynch, 5 Johns. Rep. 538. Thompson v. Ketcham, 8 Johns. Rep. 146. Hicks v. Brown, 12 Johns. Rep. 142. Van Raugh v. Van Arsdale, 3 Caines' Rep. 154. Powers v. Lynch, 3 Mass. Rep. 77. Grimshaw v. Bender, 6 Mass. Rep. 157. Hazzlehurst v. Kean, 4 Yeates' Rep. 19. Scofield v. Day, 20 Johns. Rep. 102. McCandlish v. Cruger, 2 Bay's Rep. 377, for the principles recognized in our American jurisprudence.
19. Lodge v. Phelps, 1 Johns. Cas. 139. Heath, J., 1 Bos. & Pull. 142.
20. Hill v. Lewis, 1 Salk. Rep. 132. Burchell v. Slocock, 2 Lord Raym. 1545. Smith v. Kendall, 6 Term Rep. 123. Rex v. Box, 6 Tannt. Rep. 325. Gerard v. La Coste, 1 Dallas' Rep. 194. Downing v. Backentoes, 3 Caines' Rep. 137.
21. Cruchley v. Clarance, 2 Maule & Selw. 90.
22. Popplewell v. Wilson, 1 Str. Rep. 264. Emery v. Bartlett, 2 Lord Raym. 1555. Boehm v. Sterling, 7 Term Rep. 423. White v. Ledwich, cited in Bayley on Bills, 25.
23. Taylor v. Dobbins, 1 Str. Rep. 399. Elliott v. Cooper, 2 Lord Raym. 1576.
24. Grant v. Vaughan, 3 Burr. Rep. 1516.
25. Collins v. Emett, 1 H. Blacks. Rep. 313. Minet v. Gibson, 3 Term Rep. 481. 1 H. Blacks. Rep. 569. Tatlock v. Harris, 3 Term Rep. 174. Hunter v. Blodgett, 2 Yeates' Rep. 480. Foster v. Shattuck, 2 N. Hamp. Rep. 446.
26. Miller v. Race, 1 Burr. Rep. 452. Grant v. Vaughan, 3 Burr. Rep. 1516. Peacock v. Rhodes, Doug. Rep. 633. King v. Milson, 2 Campb. N. P. 5. Solomons v. The Bank of England, 13 East's Rep. 135, in notis. Cruger v. Armstrong, 3 Johns. Cas. 5. Conroy v. Warren, ibid. 259. Thurston v. McKown, 6 Mass. Rep. 428.
27. Collins v. Martin, 1 Bos. & Pull. 648. Reynolds v. Chettle, Campb.N. P. 596.
28. Gilbert's Lex Praetoria, 288, 289.
29. Bowyen v. Bampton, Str. Rep. 1155. Lord Mansfield, in Peacock v. Rhodes, Doug. Rep. 636. Lowe v. Walker, ibid. 736. Ackland v. Pearce, 2 Campb. N.P. 599. Since the above decisions, the statute of 58 Geo. III c. 98 protects bills and notes in the hands of an endorsee, for valuable consideration, and without notice, though founded on usury; and as there seems to be a strong disposition at the present day, to free usury from civil impediments, it is probable there is a relaxation on this point in some parts of this country.
30. De Bras v. Forbes, 1 Esp. N.P. Rep. 117. Ashhurst, J., 2 Term Rep 71.
31. Steers v. Lashley, 6 Term Rep., 61. Wiffen v. Roberts, 1 Esp. N. P. 261. Perkins v. Challis, 1 N. Hamp. Rep. 254.
32. Brown v. Davis, 3 Term Rep. 80. Down v. Halling, 4 Barnw. & Cress. 330. Ayer v. Hutchins, 4 Mass. Rep. 370.
33. 5 Johns. Ch. Rep. 56.
34. Ayer v. Hutchins, 4 Mass. Rep. 370.
35. 3 Barnw. & Cress. 466.
36. 4 Esp. N.P. 56.
37. Bank of Washington v. Triplett, 1 Peters' Rep. 25.
38. Marius on Bills, 19. Smith v. Wilson, Andrew's Rep. 187. Chamberlyn v. Delarive, 2 Wils. Rep. 353. Muilman v. D'Eugino, 2 H. Blacks. Rep. 565. Aymar v. Beers, 7 Cowens' Rep. 705.
39. Lumley v. Palmer, Str. Rep. 1000. Powell v. Monnier, 1 Atk. Rep. 612.
40. Marius, 17. 21. Molloy, b. 2. ch. 10. sec. 21.
41. 2 Brod. & Bing. 165.
42. Miln v. Prest, 4 Campb. Rep. 393.
43. 2 Wheat. Rep 66. See also to S. P. 1 Peters' Rep. 264.
44. 15 Johns. Rep. 6.
45. 3 Burr. Rep. 1663.
46. Powell v. Monnier, 1 Atk. 611. Wynne v. Raikes, 5 East's Rep. 514.
47. Cox v. Troy, 5 Barnw. & Ald. 474. Emerigon, tom. t. 45. cites Dupuy de la Serra, art. des. lettres de change, ch. 10 as laying down the maxim, that while the acceptor is master of his signature, and before he has parted with the bill, he can cancel his acceptance. This doctrine of La Serra is cited with particular approbation by Pothier, Traité du Contrat de Change, n. 44. and his opinion was mentioned with great respect by the K. B. in the case last referred to, and there is now entire harmony on the point in the jurisprudence of the two nations.
48. Harvey v. Martin, 1 Campb. 425. note.
49. Wegerslofe v. Keene, 1 Str. Rep. 214. Smith v. Abbott, 2 Str. Rep. 1152.
50. Fentum v. Pocock, 5 Taunton, 192. The Governor and Company of the Bank of Ireland v. Beresford, 6 Dow's Parl. Cas. 234. Bank of Montgomery County v. Walker, 9 Serg. & Rawle, 299. Murray v. Judah, 6 Cowen. 484.
51. Paton v. Winter, 1 Taunton, 420.
52. Mulford v. Walcott, 1 Lord Raym. 574. Mertens v. Winnington, 1 Esp.N. P. Rep. 112. Bayley on. Bills, 209.
53. Konig v. Bayard, 1 Peters' Rep. 250.
54. Beawes, tit. Bills of Exchange, pl. 42. Jackson v. Hudson, 5 Campb. 447.
55. Mitford v. Walcot, 12 Mod. Rep. 410.
56. Pothier, h. t. pl. 170.
57. Pothier, h. t. pl. 137.
58. Rickford v. Ridge, 2 Campb. 537. Beeching v. Gower, 1 Holt, 313, note of the Reporter.
59. Cruger v. Armstrong, 3 Johns. Cas. 5. Conroy v. Warren, ibid. 259.
60. Molloy, b. 2. c. 10. sect. 34. Bayley on Bills, 128.
61. Parker, Ch. J., in 1 P. Wms. 255. Conner v. Martin, cited in 3 Wils. Rep. 5. Rawlinson v. Stone, 3 Wils. Rep. 1.
62. Peacock v. Rhodes, Doug. Rep. 633. Francis v. Mott, cited in Doug. Rep. 634. Bull. N. P. 275. Livingston v. Clinton, and Cooper v. Kerr, cited in 3 Johns. Cas, 264. Lovell v. Evertson, 11 Johns. Rep. 52. Duncan, J, in 13 Serg. & Rawle, 315.
63. Gorgier v. Mieville, 3 Barnw. & Cress. 45.
64. Smith v. Clarke, Peakes' N. P. Rep. 225. United States v. Barker, 1 Paine's Rep. 156.
65. Edie v. East India Company, 2 Burr. Rep. 1216. Ancher v. The Bank of England, Doug. Rrp. 637. Smith v. Clarke, 1 Esp. Rep. 180.
66. Lambert v. Pack, 1 Salk. Rep. 127. Putnam v. Sullivan, 4 Mass.Rep. 45. Codwise v. Gleason, 3 Day's Rep. 12.
67. Russel v. Langstaffe, Doug. Rep. 514.
68. See Jackson v. Richards, 2 Caines' Rep. 343.
69. Mendes v. Carreroon, 1 Lord Raym. 742. Gorgerat, v. McCarty, 2 Dallas' Rep. 144.
70. Brown v. Davies, 3 Term Rep. 80. Tinson v. Francis, 1 Campb. Rep. 19.
71. Furman v. Haskin, 2 Caines' Rep. 369. Losee v. Dunkin, 7 Johns. Rep. 170. Field v. Nickerson, Mass. Rep. 131. Sice v. Cunningham, 1 Cowen's Rep. 397. Martin v. Winslow, 2 Mason's Rep. 241.
72. 6 Mass. Rep. 428.
73. Chalmers v. Lanion, 1 Campb. Rep. 383.
74. Goupy v. Harden, 7 Taunt. Rep. 159.
75. Fry v. Hall, 7 Taunt. Rep. 396. Muilman v. D'Eugino, 2 H. Blacks. Rep. 565.
76. Parsons, Ch. J., 6 Mass. Rep 228.
77. Dallas, J., in Goupy v. Harden, 7 Taunt. Rep. 163. Rice v. Stearns, 3 Mass. Rep. 225. Welch v. Lindo, 7 Cranch's Rep. 159. Ersk. Inst. of the Scotch Law, vol. ii. 468. Bell's Com. on the Scotch Law, vol. i. 402.
78. McKinney v. Crawford, 8 Serg. & Rawle, 351. Berry v. Robinson, 9 Johns. Rep. 121. Bishop v. Dexter, 2 Conn. Rep. 419. Dwight v. Emerson, 2 N. Hamp. Rep. 159. Rugely v. Davidson, 3 S. C. Const. Rep. 33.
79. Tassell v. Lewis, 1 Lord Raym, 743. Rogers v. Stevens, 2 Term Rep. 713. Butler, J., 4 Term Rep. 175. Gale v. Walsh, 5 Term Rep. 239. Charters v. Bell, 4 Esp. Rep. 48.
80. Miller v. Hackley, 5 Johns. Rep. 375. In this case it was said that a bill drawn in New York, on Charleston, or any other place within the United States, was an Inland bill. But, in South Carolina, and in Pennsylvania, a bill drawn in one state, upon a person residing in another, is considered in the light of a foreign bill, requiring a protest. (Duncan v. Course, 1 S C. Const. Rep. 100. Landsdale v. Brown, C. C., U. S. October, 1821, for Pennsylvania district, Whart. Dig. tit. Bills of Exchange, p1.61.) The opinion in New York was not given on the point on which the decision rested; and it was rather the opinion of Mr. Justice Van Ness, than that of the court; but he is supported by Dr. Tucker. (See Tucker's Blackstone, vol. ii. 467, note 22.) and also by Marius on Bills, p. 2, who holds, that bills between England and Scotland were inland bills. The decision in South Carolina was a solemn adjudication, after argument, on the very question, and the weight of American authority is, therefore, on that side.
81. Roscow v. Hardy, 2 Campb. Rep. 458.
82. Milford v. Mayor, Doug. Rep. 55. Ballingalls v. Gloster, 3 East's Rep. 481.
83. Watson v. Loring, 3 Miss. Rep. 557. Sterry v. Robinson, 1 Day's Rep. 11. Mason v. Franklin, 3 Johns. Rep. 202. Weldon v. Buck, 4 ibid. 144. Winthrop v. Pepoon, 1 Bay's Rep. 468.
84. 3 Dallas' Rep. 365.
85. Cited in 6 Serg. & Rawle, 358
86. Read v. Adams, 6 Serg. & Rawle, 356.
87. 1 Bell's Comm. 408.
88. Saunderson v. Judge, 2 H. Blacks. Rep. 509. Stedman v. Gooch, 1 Esp. N. P. Rep. 3. Berkshire Bank v. Jones, 6 Mass. Rep. 524. State Bank v. Hurd, 12 Mess. Rep. 172. Mason v. Franklin, 3 Johns.Rep. 202. Whittier v. Graffam, 3 Greenleaf, 82.
89. Boot v. Franklin, 3 Johns. Rep. 207.
90. 4 Mass. Rep. 45. 4 Serg. & Rawle, 480.
91. Anderson v. Drake, 14 Johns. Rep. 114. McGruder v. Bank of Washington, 9 Wheat. Rep. 598. Bayley on Bills, edit. Boston, 126.
92. Stewart v. Eden, 2 Caines' Rep. 127. Duncan v. McCullough, 4 Serg. & Rawle, 480.
93. Anderson v. Drake, 14 Johns. Rep. 114.
94. Saunderson v. Judge, 2 H. Blacks. Rep. 509. Sanderson v. Bowes, 14 East's Rep. 500. Dickinson v. Bowes, 16 East'sRep. 110. Butterworth v. Le Despenser, 3 Maule & Selw. 150.
95. Howe v. Bowes, 16 East's Rep. 112.
96. Herring v. Sanger, 3 Johns. Cas. 71.
97. Wolcott v. Van Santyoord, 17 Johns. Rep. 248. Caldwell v. Cassidy, 8 Cowen's Rep. 271.
98. 19 Johns. Rep. 891.
99. United States Bank v. Smith, 11 Wheat. Rep. 171.
100. 2 H. Blacks. Rep. 509. 6 Mass. Rep. 524.
101. Bayley on Bills, 25.
102. 4 Maule & Selw. 505.
103. 4 Barn. & Ald. 197.
104. 16 Johns. Rep. 315. S. C. Johns. Rep. 390.
105. Mitchell v. Culver, 7 Cowen's Rep. 336. Mechanics' and Farmers' Bank v. Scuyler, ibid. 337, note.
106. Parker, Ch. J., in Tenney v. Prince, 4 Pickering, 385.
107. This point has been the subject of great litigation and discussion in the English courts, and judges of high professional character and of great professional learning, have entertained directly opposite opinions on the question. In Ambrose v. Hopwood, 2 Taunt Rep. 61, the C. B. held, that the bill must be presented at the place specified in the acceptance, and not elsewhere. This was in 1809. In Callaghan v. Aylet, 3 Taunt Rep. 397, in 1811, the same court followed the same doctrine, and, after more discussion, declared that where the bill was accepted payable at a particular place, it was a qualified acceptance, and the presentment must be averred and proved to have been made there. There may in the act of acceptance be a qualification of the place, a well as of the time, of acceptance. In Fenton v. Goundry, 13 East's Rep. 459. in 1811, the same question arose in the K. B., and was decided differently; and it was held, that though the bill was accepted payable at a place certain, it was still to be taken to be payable generally and universally, and wherever demanded. Afterwards, in Gammon v. Schmoll, 5 Taunt. Rep. 344, the Court of C. B., notwithstanding the decision of the K. B., adhered with determined purpose to their former doctrine; and in Bowes v. Howe, on error from the K. B. into the Exchequer Chamber, 5 Taunt. Rep. 30, the doctrine of the C. B. was established. It being of great importance to the mercantile world that the law on this subject should be fixed and known, the same point was brought into review before the House of Lords, in 1820, in the case of Rowe v. Young, 2 Bro. & Bing Rep. 165, and the opinions of the twelve judges were taken for the information of the Lords. The point was elaborately discussed in the separate opinions of the judges, which displayed all the learning and acuteness of investigation of which such a narrow and dry question was susceptible. A majority of the judges were in favor of the opinion of the K. B., but the House of Lords reversed the judgment of the K. B., and overthrew their doctrine, and established the rule, that, if a bill of exchange be accepted payable at a particular place it was necessary to aver and prove presentment of the bill at that place, and the party so accepting is not liable to pay on a demand made elsewhere. Lord Eldon's opinion in the House of Lords was distinguished for being clear, nervous, pertinent, logical, and conclusive; and he very well observed, that he could not understand the good sense of the distinction of the K. B., that if a promissory note be payable at a particular place, the demand must be made there, because the place, being in the note, is part of the contract; but if a bill be accepted, payable at a particular place, it is not a part of the acceptance, and the presentment need not be made there. Soon after this decision was made, the statute of I and 2 Geo. IV. ch. 78 was passed, declaring that an acceptance, payable at a particular place, had the effect of a general acceptance, and the holder was not bound to present the bill at any particular place, and the acceptor might be called on elsewhere, as well as at the place indicated. So far the rule was thrown back by statute into the situation in which it was placed by the K. B, but the statute further provided, that if the bill was accepted payable at a specified place only, and not elsewhere, it was then to be considered a qualified acceptance, and demand must be made at the specified place. The Supreme Court of the United States in U. S. Bank v. Smith, 11 Wheat. Rep. 171, were inclined to think that as against the acceptor of a bill or maker of a note, no averment or proof of demand of payment at the place designated in the instrument was necessary. They withheld a decided opinion on the point. But as against the endorser, such demand and proof were held to be indispensable.
108. Brown v. Harradan, 4 Term Rep. 148. Bussard v. Levering, 6 Wheat. Rep. 102. Lindenberger v. Beall, ibid. 104. The period of grace varies in different countries. In France, by the ordinance of 1673, tit. 5. art. 4. it was ten days, but by the new code, art. 135, all days of grace are abolished. In Massachusetts a promissory note is not entitled to grace, unless it be an express part of the contract. Jones v. Fales, 4 Mass. Rep. 245.
109. Buller, J., 4 Term Rep. 174. The opinion of Buller, J., has been adopted in Greeley v. Thurston, 4 Greenleaf, 479.
110. Tassell v. Lewis, 1 Lord Raym, 743. Jackson v. Richards, 2 Caines' Rep. 343. Lewis v. Burr, 2 Caines' Cas. in Error, 195. Bussard v. Levering, 6 Wheat. Rep. 102.
111. Colman v. Sayer, 1 Barnard K. B. 303. Bayley on Bills, 152. In France, while days of grace were allowed under the ordinance of 1673, Pothier agreed with M. Jousse, in his commentary, that a bill payable at sight had no days of grace; and he justly observed, that it would be unreasonable and inconvenient for a person who takes a draft, for his accommodation, on his journey, payable at sight, to be obliged to wait the days of grace for his money. Traité du Con. de Change, art. 172.
112. Mitchell v. De Grand, 1 Mason's Rep. 176.
113. Bayley on Bills, 155.
114. Coleman v. Sayer, Str. Rep. 829. Wiffen v. Roberts, Esp. N.P. Rep. 261.
115. Renner v. Bank of Columbia, 9 Wheat. Rep. 581. Mills v. The Bank of the United States, 11 ibid. 431. Bank of Washington v. Triplett, 1 Peters' Rep. 256.
116. City Bank v. Cutter, 3 Pick. Rep 414.
117. Bank of Washington v. Triplett, 1 Peters' Rep. 25.
118. Heylyn v. Adamson, 2 Burr. Rep. 669. Rushton v. Aspinall, Doug. Rep. 679.
119. Porthouse v. Parker, 1 Campb. Rep. 82
120. Tindal v. Brown, 1 Term Rep. 167. Darbishire v. Parker, 6 East's Rep. 3. Hilton v. Shepherd, 6 East's Rep. 14, in notis. Bateman v. Joseph, 12 East's Rep. 433. Ches. Ins. Co. v. Stark, 6 Cranch's Rep. 273. Mar. Ins. Co. v. Ruden, ibid. 328. Taylor v. Brigden, 8 Johns. Rep. 173. In the late cases of Aymar v. Beers, 7 Cowen's Rep. 705, and of the Bank of Columbia v. Lawrence, 1 Peter's Rep. 578, it is held, that the reasonableness of notice, or demand, or due diligence, when the facts were settled, was a question of law for the court. and not a question of fact for a jury. But the question is so mixed up with circumstances, and it is so compounded of the ingredients of law and fact, that it will be found, in practice, very difficult to retain on the bench the exclusive jurisdiction of the question.
121. Grose, J., and Lawrence. J., in Darbishire v. Parker, 6 East's Rep. 10. Scott v. Lifford, 9 East's Rep. 347. Smith v. Mullet, 2 Campb. 208. Hilton v. Fairclough, ibid. 633. Williams v. Smith, 2 Barnw. & Ald. 496. Bancroft v. Hall, 1 Holt's N P. 476. Bray v. Hawden, 5 Maule & Selw. 68. Jackson v. Richards, 2 Caines' Rep. 343. Stewart v. Eden, ibid. 121. Corp v. McComb, 1 Johns. Cas 328. Ireland v. Kip, 10 Johns. Rep. 490. Lenox v. Roberts, 2 Wheat. Rep. 373. Bussard v. Levering, 6 Wheat. Rep. 102. Lindenberger v. Beall, ibid 104. Shed v. Brett, 1 Pick. Rep. 401. Mead v. Engs, 5 Cowen's Rep. 303. Whittier v. Graffam, 3 Greenleaf's Rep. 82. The Bank of Columbia v. Lawrence, 1 Peters' Rep. 578.
122. Jameson v. Swinton, 2 Campb. Rep. 373.
123. Shed v. Brett, 1 Pick. Rep. 401. Mills v. Bank of the United States, 11 Wheat Rep. 431
124. Morgan v. Woodworth, 3 Johns. Cas. 89. Pothier, Traité du Con. de Change, No. 153.
125. Cromwell v. Hynson, Esp. N. P. Rep. 511. Charters v. Bell, 4 ibid. 48. Robins v. Gibson, 1 Maule & Selw. 289. Lenox v. Leverett.10 Mass. Rep. 1.
126. Powell v. Roach, 6 Esp. N.P. Rep. 76. Beawes, 420, 424, sec. 74. Kenworthy v. Hopkins, 1 Johns. Cas. 107.
127. Bickerdike v. Bollman, 1 Term Rep. 405. Rogers v. Stephens, 2 ibid. 73. Corney v. Da Costa, 1 Esp. N. P. Rep. 302. Staples v. Okines, ibid 332. Clegg. v. Cotton, 3 Bos. & Pull. 239. Brown v. Maffey, 15 East's Rep. 216. Rucker v. Hiller, 16 East's Rep. 43. Cory v. Scott, 3 Barnw. & Ald. 619. French v. Bank of Columbia, 4 Cranch's Rep. 141.
128. Nicholson v. Gouthit, 2 H. Blacks. Rep. 609. Esdaile v. Sowerby, 11 East's Rep. 114. Howe v. Bowes, 5 Taunt. Rep. 30. Rhode v. Proctor, 4 Barnw. & Cress. 517. Jackson v. Richards, 2 Caines' Rep. 343. Sanford v. Dillaway, 40 Mass. Rep. 52. Buck v. Cotton, 2 Conn. Rep. 126. Mr. Bell, in his Commentaries, vol. i. 413, mentions a number of Scotch decisions to the same effect. See also, Pardessus, part 6. tit. 8, ch. 3. sec. 4. to the same point.
129. 4 Barnw. & Cress. 517.
130. See Ex parte Moline, 19 Vesey's Rep. 216, and Thompson on Bills, p. 535, as cited to that point by Mr. Justice Bayley, in Rhode v. Proctor. See also Bell's Comm. vol. i. 421.
131. McLemore v. Powell, 12 Wheat. Rep. 554.
132. Walker v. Bank of Montgomery County, 12 Serg. & Rawle, 382. S. C. 9 Serg. & Rawle, 229.
133. Ex parte Smith, 3 Bro. 1. Walwyn v. St. Quintin, 1 Bos. & Pull 652. English v. Darley, 2 ibid. 61. Clark v. Devlin, 3 ibid. 26. Ex parte Wilson, 11 Ves. Rep. 410. Gould v. Robson, 8 East's Rep. 576. Pring v. Clarkson, 1 Barnw. & Cress. 14.
134. English v. Darley, 3 Esp. N.P. Rep. 49. S. C. 2 Bos. & Pull. 61. Smith v. Knox, 3 Esp. N. P. Rep. 46. Sargent v. Appleton, 6 Mass. Rep. 65.
135. Goodall v. Doller, 1 Term Rep. 712. Hope v. Alder, 6 East's Rep. 16, in notis. Lundie v. Robertson, 7 East's Rep. 231. Borradaile v. Lowe, 4 Taunt. Rep. 93. Stevens v. Lynch, 2 Campb. N.P. 332. Miller v. Hackley, 5 Johns. Rep. 375. Martin v. Winslow, 2 Mason's Rep. 241. Fotheringham v. Price, 1 Bay's Rep. 291. Thornton v. Wynn, 12 Wheat. Rep. 183.
136. Mead v. Smalt, 2 Greenleaf's Rep. 207. Bond v. Farnham, 5 Mass. Rep. 170. Prentiss v. Danielson, 5 Con. Rep. 175.
137. Dugan v. U. States, 3 Wheat. Rep. 172. Norris v. Badger, 6 Cowen's Rep. 499.
138. Critchlow v. Parry, 2 Campb. N.P. Rep. 182.
139. Simmonds v. Parminter, 1 Wils. Rep. 185. Dingwall v. Dunster, Doug. Rep. 247. Smith v. Chester, 1 Term Rep. 654. Fentum v. Pocock, 5 Taunt Rep. 192.
140. Gibson v. Minet, 1 H. Blacks, Rep. 569. S. C. 2 Term Rep. 481.
141. Patton v. Bank of S. C., 2 Nott. & McCord, 464. Martin v. Bank of the United States, C. C. Pennsylvania district, 1821. Bank of the United States v. Sill, 5 Conn. Rep. 106.
142. Mellish v. Simeon, 2 H. Blacks. Rep.378. De Tastel v. Baring, 11 East's Rep. 265. Parsons, Ch. J., in Grimshaw v. Bender, 6 Mass. Rep. 157. Code de Commerce, b. 1. tit. 8. sec. 13. Van Leeuwen's Commentaries, 440.
143. Hendricks v. Franklin, 4 Johns. Rep. 119. Weldon v. Buck, ibid. 144.
144. Graves v. Dash, 12 Johns. Rep. 17.
145. Denston v. Henderson, 13 Johns. Rep. 322.
146. Laws of New York, 42d sess. ch. 34.
147. Grimshaw v. Bender, 6 Mass. Rep. 157.
148. See Griffith's Law Register, passim, under the head of "bills of exchange and promissory notes." And see Report of Mr. Verplanck, from the select committee in the House of Representatives of the Congress of the United States, on the subject of foreign bills, made March 22d, 1826.
149. See the Report of. Mr. Verplanck from the select committee, already referred to, and the Report of a Committee of the Chamber of Commerce of New York, in February, 1828. In that last document the Committee of the Champer of Commerce approved of the principle of damages on foreign bills returned under protest, and they state that the practice of re-exchanges, which are so easily made between the great capitals of Europe, does not exist between Europe and the United States; nor do our business operations require them; and, until some safe and satisfactory substitute is established, the usage in this country, of allowing damages on protested bills, ought to be continued.
150. 3 Burr. Rep. 1663.
151. 7 Brown's P.C. 556.
152. 29 Charles, II. ch. 3. sec. 4.
153. 5 East Rep. 10.
154. See Ex parte Minet, 14 Ves. Rep. 190. Ex parte Gardom, 15 ibid. 286
155. Saunders v. Wakefield, 4 Barnw. & Ald. 595. Jenkins v. Reynolds, 3 Brod. & Bing. 14. Morley v. Boothby, 3 Bing. Rep. 107.
156. Sears v. Brink, 3 Johns Rep. 210. Leonard v. Vredenburgh, 8 ibid. 29. 2 Nott & McCord, 372, note. Packard v. Richardson, 17 Mass. Rep. 122. Levy v. Merrill, 4 Greenleaf's Rep. 180. S. P. ibid. 387. Sage v. Wilcox, 6 Conn. Rep. 81.
157. Marshall, Ch. J., 5 Cranch's Rep. 151-2.
158. Leonard v. Vredenburgh, 8 Johns. Rep. 29. D'Wolf v. Babaud, 1 Peters' Rep. 476. The doctrine in 8 Johns. Rep. is confirmed in 11 Johns. Rep. 221 and 13 Johns. Rep. 175, and in Peters' Rep. the doctrine is said to be founded in good sense and convenience.
159. Leonard v. Vredenburgh, 8 Johns. Rep. 29. Bailey v. Freeman, 11 ibid. 221. Hunt v. Adams, 5 Mass. Rep. 358. Williams v. Leper, 3 Burr. Rep. 1886.
160. The student will find the law concerning mercantile guaranties, and of principal and surety, fully examined, and the substance of the numerous cases well digested, in Fell's Treatise on Mercantile Guaranties.
161. As evidence of the diffusiveness of the subject, and the infinity of its subordinate rules and distinctions, I would refer to the edition of Chitty on Bills, published at Philadelphia in 1826, which is a bulky octavo of 729 pages in small type, and which has an index alone of 159 pages. It contains the citation of perhaps 2000 English, and 600 American adjudged cases, on this single subject of bills and notes. I have attempted no more, in the course of the lecture, than to select a sufficient number of cases to establish the general principles, and to show their widespread adoption. And yet I am apprehensive that I may be censured by some, as having, as it is, gone too far into detail, and encumbered the notes too much with references to authority. My apology (if any be necessary) is, that these commercial subjects, as it appears to me, cannot be handled usefully in any other way. My mind has been too long disciplined by the actual business of life, to indulge in general theory on law subjects, or to think it of much value. The first duty of a law book is to state the law as it is, truly and accurately, and then the reason or principle of it as far as it is known; and if the author be a lecturer or commentator, he may be more free in his observations on its history and character, and be ought to illustrate it by comparison with the institutions of other countries and ages, and, in strong cases, to point out its defects, to show its false doctrines, and modestly and temperately to suggest alterations and improvements. All this I have endeavored to do, so far as the subject was within the compass of my means and resources; but still the existing and leading rules, ought to be laid open to the inspection of the lawyer and the scholar, with mathematical precision, and absolute certainty. I say ought, for how can any one pretend to be infallible in treating of subjects perplexed by ten thousand cases, and when every rule is checked or qualified by reservations and exceptions of the most fine-spun and subtle character.
162. 6 Mod. Rep. 29.
163. See Heineccii Opera, tom. 6. in fine.