Sumn. 506; Dufphey v. Frenaye, 5 St. & Port. 215; Duncan v. Johnson, 13 Ark. 190; Brown v. Welch, 18 Ill. 843; Keys v. Test, 33 Ill. 816; Simms v. Richardson, 2 Litt. 274; Palmer v. Williams, 24 Mich. 828; Losey v. Simpson, 8 Stockt. 246; Frost v. Beckman, 1 Johns. Ch. 288; Jewett v. Palmer, 7 Johns. Ch. 65; Farmers' Co. v. Maltby, 8 Paige, 861; Harris v. Norton, 16 Barb. 264; Genet v. Davenport, 66 Barb. 412; Snelgrove v. Snelgrove, 4 Dess. 274, 287; Youst v. Martin, 3 S. & R. 423; Union Co. v. Young, 1 Whart. 410; Juvenal v. Jackson, 14 Pa. 519; Beck v. Uhrich, 18 Pa. 639; Pillow v. Shannon, 8 Yerg. 508; Doswell v. Buchanan, 3 Leigh, 865; Everts v. Agnes, 4 Wis. 843, where the subject of the transfer was property other than negotiable paper. Conf. Bancroft v. McKnight, 11 Rich. 668.—ED. Purchase for Value without Notice — (continued). (c) NOTICE. MORE v. MANNING. IN THE COMMON PLEAS, MICHAELMAS TERM, 1718. [Reported in Comyns, 311.] TIs was an action of assumpsit upon a promissory note given by Manning to Statham and order; Statham assigns it to Witherhead, and Witherhead to the plaintiff; and upon a demurrer to the declaration an exception was taken, because the assignment was made to Witherhead, without saying to him and order, and then he cannot assign it over, for by this means Statham, who had assigned it to Witherhead without subjecting himself to his order, will be made liable to be sued by any subsequent indorsee. And to this the Chief Justice at first inclined, but afterwards it was resolved by the whole court that it was good. For if the original bill was assignable (as it will be, if it be payable to one and his order), then he, to whomsoever it is assigned, has all the interest in the bill, and may assign it as he pleases, for the assignment to Witherhead is an absolute assignment to him, which 'comprehends his assigns, and therefore nothing is done when the bill is assigned but indorsing the name of the indorser, upon which the indorsee may write what he will, and at a trial, when a bill is given in evidence, the party may fill up the blank as he pleases.1 1 Acheson v. Fountain, 1 Stra. 557, accord. EDIE AND LAIRD v. THE EAST INDIA COMPANY. IN THE KING'S BENCH, TRINITY TERM, 1761. [Reported in 1 William Blackstone, 295.1] ACTION on two bills of exchange of £2,000 each, drawn by R. Clive on the East India Company, at three hundred and sixty-five days after date, payable to R. Campbell or order. Campbell indorsed one to Ogleby or order, the other to Ogleby, without adding the words “or order." But, at the trial, the words "or order" appeared upon the inJorsement in another handwriting. The East India Company accepted both bills. Ogleby then indorsed them to the plaintiffs, and soon after became insolvent. The Company then refused payment. The jury found a verdict for the plaintiffs on the first bill, but for the defendants on the second; apprehending that by the usage of merchants it was not assignable, without the words "or order" in Campbell the payee's indorsement. Morton moved for a new trial. 1st, Because the bill, being once negotiable, could not lose its negotiability by Campbell's writing on it some words, and omitting others. Moore v. Manning. Words "or order" being omitted in an indorsement, still the bill is payable to order, if so in the original draft. Acheson v. Fountain, Evans v. Cramlington. 2d, On the footing of surprise; the plaintiff not being prepared to give evidence of the custom of merchants, and the evidence given by defendants being not of facts, but merely of opinion. Yates, S. S. Norton and Wedderburn showed cause. 1st, That custom is the foundation of all bills of exchange; and the custom of merchants is matter of law, not of fact: so is properly evidenced by opinion. A payee or indorsee, when the draught or indorsement is general, is absolute owner of the bill; he is the purchaser of it: value received is implied. He may destroy its negotiability. If he indorses it with negative words, as, " to J. N., and nobody else," will any man seriously contend that it is payable to any one else? Will any man take it? And if putting negative words on it would have destroyed its negotiability, then omitting the words "or order" amounts to the same thing. It is an implied negative. Campbell might have indorsed it in blank (i. e. by only writing his own name), and then I agree that any one might have overwrote what he pleased upon it. The pre 1 2 Burr. 1216, s. c.— - ED. 21 Str. 557. sumption in such case is that he meant to make it of the greatest possible use to his indorsee. But, having once put the terms of indorsement upon it, this destroys the other presumption. All subsequent indorsees take it under the new terms imposed upon it. It is now a naked authority to Ogleby to receive the money. Such a special indorsement does not import value received, for Ogleby might only be agent or factor for the indorser. Moore v. Manning is hardly law. It is contrary to the reason which arises from the case itself. For the reason of such special indorsement in that case seems to have been that the indorser was a creditor to the special indorsee. Had therefore the bill been protested for non-payment, the indorsee had effects of the indorser's in his hands sufficient to indemnify himself. But, upon a general indorsement, the indorser might have been called upon, at a distance of time, by any subsequent indorsee, which might have been very inconvenient. 2d, The footing of surprise, if true, is no ground for new trial. If this be allowed, new trials would be always moved for, whenever the losing party thinks he can mend his evidence. Morton, in reply, insisted that the supposition of law is equally strong, that a special indorsee is a purchaser, as well as a general one. For he might have resorted to Campbell as well as to Ogleby. LORD MANSFIELD, C. J. There can be no dispute where the indorsement is in blank. There you may write over it whatever you please. And it has been permitted to be done even in court. But for this there is no occasion. Every thing shall be intended upon such a blank indorsement. The point relied on at the trial for defendants was that where a special indorsement was made to A. B., and the indorser omitted the words "or order," this was equivalent to the most restrictive indorsement. Many witnesses were examined by defendants to prove this usage; but it did not appear that in any one fact the indorsee of such special indorsement ever lost the money by such omission. The evidence was only matter of opinion. I told the jury that upon the general law (laying usage out of the case) the indorsement carried the property to Ogleby, and that the negotiability was a consequence of the transfer. But if they found an established usage among merchants, that where the words "or order" were omitted the bill was only negotiable on the credit of the indorsee, they should find for the defendants. If otherwise, or they were doubtful, then either for the plaintiffs, or make a case of it. They found for the defendant on the bill in question; for the plaintiff on the other, concerning which there was no dispute. Now, upon the best consideration I have been able to give this matter, I am very clear of opinion that at the trial I ought not to have admitted the evidence of usage. But the point of law is here settled; and, when once solemnly settled, no particular usage shall be admitted to weigh against it: this would send every thing to sea again. It is settled by two judgments in Westminster Hall, both of them agreeable to law and to convenience. The two cases I go upon are Moore v. Manning in Comyns and Acheson v. Fountain in Strange. These cases go upon a general proposition in law, that an indorsement to A. implies" or order," and is negotiable. The main foundation is to consider what the bill was in its origin. The present bill, in its original creation, was not a bare authority, but a negotiable draught. There are no restrictive words in it. And whatever carries the property carries the power to assign it. It were absurd if the merchants' opinion should prevail, that this is now converted into a personal authority. If it be such, that the indorsee dies, it could not go to his executors and administrators, in whom most clearly the property of the bill does vest. Upon this ground, that the point is settled both by King's Bench and Common Pleas, and well settled, I think there should be a new trial Otherwise, also, I should be of the same opinion. Certainly, the sug gestion of surprise is not in all cases a reason for a new trial; but in particular cases, such as the present, it may be. The question of costs is very peculiar. There is a verdict in part for the plaintiff, which already carries costs for him. But, for form's sake, we must set aside the whole verdict, which is usually done on payment of costs. But this would be giving defendants costs, which they could not otherwise have, merely because they have obtained an improper verdict. Therefore, I think that under these particular circumstances the verdict should be set aside without costs. DENISON, J. I am of the same opinion. If the words "to A. B. only" were inserted, I should think it would not be restrictive: at least, it should be left to a jury. In Rawlinson v. Stone, an inland bill of exchange was drawn payable to A. or order, who indorsed it to B. without adding any thing more. The question was whether there was such an interest in the executor of the assignee as that he might assign it. The court held, upon inquiry from merchants, that it might be indorsed thus: "C., executor or administrator of B." When a man says, " pay to A.," the law says it is "to A. or order." He then says, I intend it should not be so. What signifies what you intend? The law intends otherwise. Same opinion as to costs. The FOSTER, J. I am of the same opinion. This is now the settled law, and ought not to have been left to a jury. People talk of the custom of merchants. This word "custom is apt to mislead our ideas. custom of merchants, so far as the law regards it, is the custom of England; and therefore Lord Coke calls it, very properly, the law |