is, were, in the course of trade, dealing and business, actually paid away and negotiated, or in fact and practice negotiable:" and I then considered this, as leaving a plain fact to them, upon which they could have no doubt.

But I am now clearly of opinion, that I ought not to have left the latter point to them: for it is a question of law, "Whether a bill or note be negotiable, or not."

It appears in the books, "That these notes are, by law, negotiable." And the plaintiff's maintaining his action, or not maintaining it, depends upon the question "Whether such a note is negotiable, or not."

It appears likewise, "That the bearer of them may maintain an action as bearer, where he can intitle himself to them on a valuable consideration."

Hinton's Case, in 2 Show. 235, is this "Case on a bill of exchange, against the drawer, (bill not being paid) and payable to J. S. or to the bearer. The plaintiff brings the action, as bearer. And, upon evidence, ruled by the Lord Pemberton, that he must intitle himself to it on a valuable consideration, (though among bankers they never make indorsements in such case:) for if he come to be bearer by casualty or knavery, he shall not have the benefit of it." (And it would be absurd, to indorse such bills as are made payable to bearer.) Crawley v. Crowther, 2 Freem. 257, Tr. 1702, in Chancery-"If a bill be payable to A. or bearer, it is like so much money paid to whomsoever the note is given; that, let what accounts or conditions soever be between the party who gives the note and A. to whom it is given, yet it shall never affect the bearer; but he shall have his whole money." So that the whole interest is transferred to the bearer.

1 Salk. 126, pl. 5, anonymous, M. 10 Wm. III., coram Holt, Ch. J., at nisi prius at Guildhall. "A bank-bill payable to A. or bearer, being given to A. and lost, was found by a stranger, who transferred it to C. for a valuable consideration: C. got a new bill in his own name. Per Holt, Ch. J. A. may have trover against the stranger who found the bill; for, he had no title, (though the payment to him would have indemnified the bank:) but A. can not maintain trover against C. by reason of the course of trade; which creates a property in the assignee or bearer." It is negotiable by delivery.

Miller v. Race, H. 31 Geo. II., 1 Burrows, 452. The holder of a bank-note recovered against the cashier of the bank, though the mail had been robbed of it, and payment was stopt; it appearing, that he came by it fairly and bona fide and upon a valuable consideration. And there is no distinction between a bank-note and such a note as this is.

The act of 3 & 4 Anne, c. 9, puts promissory notes upon the same foot, throughout, with inland bills of exchange. And therefore whatever is the rule as to inland bills of exchange payable to bearer, must be so likewise as to notes payable to bearer.

In a case between Walmesley v. Child, 11th December, 1749, in chancery, where one of Mr. Child's notes, payable to bearer, was lost or stolen, and payment stopt by the true owner, who demanded that it should be paid to him; Mr. Child refused to pay it, without surety against the demands of a future bearer. The true owner brought his bill. Lord Hardwicke dismissed the bill, unless the true owner would find such security. And he went upon the principle, that no dispute ought to be made with the bearer of a cash-note, who comes fairly by it; for the sake of commerce, to which the discrediting such notes might be very detrimental.

Upon looking into the reports of the cases on this head, in the times of King William the Third and Queen Anne, it is difficult to discover by them, when the question arises upon a bill, and when upon a note: for the reporters do not express themselves, with sufficient precision, but use the words "Note" and "Bill" promiscuously. It appears, however, that there were different opinions about the manner of declaring upon them: Lord Chief Justice Holt got into a dispute with the city about it. He was of opinion, that the plaintiff could not declare as upon a specialty, (where the consideration could not be disputed :) but he all along agreed, that the plaintiff might declare upon an indebitatus assumpsit. The objection was, to bringing an action upon the note itself, as upon a specialty: but I do not find it any where disputed, that an action upon an indebitatus assumpsit generally, for money lent, might be brought on a note payable to one or order.

Great force arises from the act of Parliament of 3 & 4 Anne putting notes merely upon the foot of inland bills of exchange, and particularly specifying notes payable to bearer.

But upon the second count, the present case is quite clear, beyond all dispute. For, undoubtedly, an action for money had and received to the plaintiff's use, may be brought by the bona fide bearer of a note made payable to bearer. There is no case to the contrary. It was certainly money received for the use of the original advancer of it and if so, it is for the use of the person who has the note as bearer. In this case, Bicknell himself might undoubtedly have brought this action. He lost it: and it came bona fide and in the course of trade, into the hands of the present plaintiff, who paid a full and fair consideration for it. Bicknell and the plaintiff are both innocent. The law must determine which of them is to stand to the loss. And, by law, it falls upon Bicknell.

There ought to be a new trial.

Rule absolute for a new trial.2

2 A note payable "to the bearer, A.," is not negotiable. Bloomingdale v. Bank, 33 Misc. Rep. 594, 68 N. Y. Supp. 35 (1901); Warren v. Scott, 32 Iowa, 22 (1871). But an instrument payable to "A., or bearer," is negotiable. Bitzer v. Wagar, 83 Mich. 223, 47 N. W. 210 (1890).

SMITH v. KENDALL.

(Court of King's Bench, 1794. 6 Term R. 123.)

Assumpsit for money paid by the plaintiff to the use of the testator, money lent to him, and on an account stated with the testator and another with the executor. The defendant pleaded the statute of limitations; to this the plaintiff replied that the latitat was sued out on the 26th of September 1793, and that the cause of action accrued within 6 years before that time; on which issue was taken.

On the trial before Lord Kenyon the plaintiff gave the following note in evidence: "Three months after date I promise to pay to Mr. Smith, Currier, £40 value received in trust for Mrs. E. Thompson, as witness my hand. L. Askew, 25 June 1787." The defendant objected, 1st. That this note was only evidence of money lent or paid by Mrs. Thompson and not by the plaintiff to the testator; and 2dly, that this was not a promissory note within the statute, and if not, that the cause of action accrued on the 25th of September 1787, three months after the date of the note, and consequently that 6 years had elapsed before the suing out of the writ. The plaintiff answered that as the note was payable to him, it was more proper to bring the action in his name than in that of Mrs. Thompson, and that the money when recovered by him would be recovered for her use; and in answer to the second objection, that this was a promissory note within the statute, in which case three days were allowed; and of course that six years had not expired when the latitat was sued out. A verdict was taken for the defendant, leave being given to the plaintiff to move to set that verdict aside, and to enter a verdict for him, if this court thought he was entitled to recover.

A motion was accordingly made for that purpose."

Lord KENYON, C. J., said: If this were res integra, and there were no decision upon the subject, there would be a great deal of weight in the defendant's objection: but it was decided in a case in Lord Raymond (2 Ld. Raym. 1545) on demurrer, that a note payable to B. without adding or to his order, or to bearer, was a legal note within the act of Parliament. It is also said in Marius that a note may be made payable either to A. or bearer, A. or order, or to A. only. In addition to these authorities I have made enquiries among different merchants respecting the practice in allowing the three days grace, the result of which is that the Bank of England and the merchants in London allow the three days grace on notes like the present. The opinion of merchants indeed would not govern this court in a question of law, but I am glad to find that the practice of the commercial world coincides with the decision of a court of law. Therefore I think that it would be dangerous now to shake

8 Arguments of counsel are omitted.

!

that practice, which is warranted by a solemn decision of this court, by any speculative reasoning upon the subject; and consequently this rule must be made absolute to enter a verdict for the plaintiff. Rule absolute.

PUTNAM v. CRYMES.

(Court of Appeals of South Carolina, 1840. 1 McMul. 9, 36 Am. Dec. 250.)

The plaintiff in this case was not the original payee, but held the note by transfer to himself by delivery. The note was made payable to Mancil Owens or holder, and the plaintiff declared as holder, and defendants demurred, on the ground that the holder could not sue without a written assignment. I regarded holder as synonymous. with bearer and overruled the demurrer.

Curia, per BUTLER, J. The word "bearer" is usually inserted in a negotiable note, transferable by delivery. But without it, the maker of a note may make it transferable by delivery, either by circumlocution, or using a word of precisely the same import. As if a note were made payable to A. B., or to any one to whom he may deliver it; or to any one who might hold the same by delivery. In both cases the bearer would be sufficiently meant and designated, although the word was not used. If it was the intention of the maker to make it payable to any one who acquires possession by delivery, he has no right to complain when it is presented to him without a written transfer. "Holder" is a word of the same import as "bearer," and both may acquire a title by lawful delivery, according to the terms of the contract. All the law requires is, that the paper must have negotiable words on its face, showing it to be the intention to give it a transferable quality by delivery; otherwise the instrument must be transferred by written endorsement, if payable to order; or sued on by the original payee, if there are no negotiable words at all.

The decision below is affirmed: the whole court concurring.

4 In Brainerd v. Railroad Co., 25 N. Y. 496 (1862), it was held that a corporate bond payable to A. or his assigns was negotiable. Denio, C. J., said (page 500): "But when such obligations are issued to secure the payment of money upon time, and contain on their face an expression showing that they are expected to pass from one person to another, and thus to perform the office of bills and notes or of money, as the words 'bearer' or 'assigns,' or 'the holder,' or the like, the courts of this country, with a single exception, and those of this state without any exception, have concurred in attaching to them the attributes of commercial paper." Accord: Zander v. New York Security & Trust Co., 178 N. Y. 208, 70 N. E. 449, 102 Am. St. Rep. 492 (1904), semble.

Compare Bank of Commerce v. Pick, 13 N. D. 74, 81, 99 N. W. 63 (1904). "The concession, therefore, may be made that if the makers of this note, having omitted the usual words to express negotiability, had said, "This note is and shall be negotiable', it would have been negotiable." Porter, J., in Raymond v. Middleton, 29 Pa. 529. 530 (1858).

See, also, Stadler v. Bank, 22 Mont. 190, 56 Pac. 111, 115, 74 Am. St. Rep. 582 (1899).

JARVIS v. WILSON.

(Supreme Court of Errors of Connecticut, 1878. 46 Conn. 90, 33 Am. Rep. 18.)

Assumpsit against the defendant as acceptor of an order drawn on him in favor of the plaintiff, brought to the court of common pleas of Hartford county, and tried to the court on the general issue before McManus, J. Facts found and judgment rendered for the plaintiff. Motion in error by the defendant. The case is fully stated in the opinion.

LOOMIS, J. On the 8th of July, 1874, one William Murphy owed the plaintiff $189.20, and drew his order on the defendant in favor of the plaintiff in writing as follows:

"Mr. A. M. Wilson: Please pay Joseph Jarvis one hundred and eighty-nine dollars and twenty cents, and charge the same to me. "William Murphy."

Murphy, who was then and had been for some time in the employ of the defendant, had been authorized by the latter to draw orders in favor of his workmen, of whom the defendant knew the plaintiff to be one.

The above order was duly presented for acceptance to the defendant on the same day that it was given, and the defendant said it was good, and verbally promised to pay it. It afterwards appeared that there was in fact due from the defendant to the drawer only $144.94, and thereupon the defendant refused to pay the plaintiff as he had before agreed. The court below upon these facts held the defendant liable for the full amount of the order. We think the judgment must stand against all the objections urged in behalf of the defendant.

The defendant claims, in limine, that his undertaking cannot be regarded as subject to the rules applicable to bills of exchange, but must be treated as a mere promise to pay money. But we do not see why it does not contain every essential element of the most approved definition of a bill of exchange. It is a written order from Murphy, addressed to the defendant, requesting him to pay the plaintiff a certain sum of money therein named. 1 Bouvier's Law Dict., Bill of Exchange; Byles on Bills, 57; Story on Bills, §§ 3, 37, 40; Edwards on Bills and Notes, 150; Eastern R. R. Co. v. Benedict, 15 Gray (Mass.) 292; Kendall v. Galvin, 15 Me. 131, 32 Am. Dec. 141; Michigan Ins. Co. v. Leavenworth, 30 Vt. 12.

But conceding the order to be a bill of exchange, the defendant further claims that he is not liable, because his acceptance was only by parol, when it should have been in writing.

It is true, as a general rule, that to make one liable as a party to a bill or note his name should appear thereon under his own hand or that of his agent. A wise policy may also require that the liability of an acceptor should not depend on parol evidence, and, recognizing