erroneous, it may be corrected by a fuperior tribunal. It. is not neceffary now to confider whether or not Lord Hols were right in fo pertinaciously adhering to his opinion before the ftatute of Anne, that no action could be maintained on promiffory notes, as inftruments, but that they were only to be confidered as evidence of the debt: that question exercised the judgments of the able men at that time; but the authority which his opinion had in Westminster Hall made others yield to him; and it was thought neceffary to refort to the Legislature to apply a remedy. It is extremely clear that on foreign bills of exchange three days grace are allowed; I think it is as little to be doubted that they are alfo allowed on inland bills; and that observation is of fome use as applicable to fome of the authorities which have been cited. It is not too much to say, that in former times, recently after the paffing of the ftatute of Anne, thefe kind of queftions were not fo well understood as they have been fince; the Judges were not fo converfant with the fubject: but they have now raised a system to answer the exigencies of the public, without departing from the rules of law. But when it is stated in Lord Raym. 743, that there was no certain time affigned by the custom of merchants for the payment of inland bills of exchange, it only fhews that the Judges were very cautious on the fubject; but now it has been fettled for more than half a century that they are payable at the fame time as foreign bills of exchange. Then it has been argued that there is a fubftantial difference between bills of exchange and promiffory notes; and that there are reafons why the acceptor of the one fhould be allowed more time than the maker of the other: but, I confess I fee no difference whatever; they both make engagements of the fame nature; and when the acceptor has accepted a bill, he is equally bound to be prepared to pay on the day appointed as the maker of the promissory note.

Then, the ground on which our judgment must proceed is the ftatute of Anne; fince which the holder of a promiffory note may declare upon it according to the form of the ftatute, though not according to the custom of merchants. The words of the preamble ought to decide the question, which the common ufage of mankind has fince put into a state of repofe. It recites, that promiffory notes were not affignable or indorfable within the custom of mer. chants, and that the indorfee could not maintain any action upon them, within the cuftom of merchants; "therefore, to the intent to encourage trade and commerce, which will be much advanced if fuch notes shall have the fame effect

as

as bills of exchange, and fhall be negotiated in like manner, &c. it is enacted, &c." The struggle between the merchants and the courts of law before this ftatute was, whether the party could declare on thefe notes according to the custom of merchants; Lord Holt thought not: but this ftatute, which was paffed at the inftance of the merchants, has made them that which they were not before; and they are now, with the affiftance of the ftatute, acted upon as if they had been within the custom of merchants. The ope→ rative part of the ftatute proceeds to fay, that fuch "notes fhall be affignable and indorfable over in the same manner, as inland bills of exchange; that the holders may maintain actions on them in fuch manner as they might upon inland bills of exchange against the makers or against the indorfees, in like manner as in cafes of inland bills of exchange, &c. In fhort, they were wholly to affume the fhape of inland bills of exchange. The cafe cited from Fortefcue, indeed, is undoubtedly against our opinion: but that cafe was determined when the doctrine on paper currency was not fo well established as it has been fince, and it has been conftantly contradicted by the uniform practice to this time, and by the courts of law. The cafe of Tindal v. Brown, is, in my opinion, very important: that case was argued several times in this Court; and afterwards in the Exchequer Chamber; but this question was not even raised, though it would have been decifive, if well founded; and it was taken for granted in all the different ftages of that cause that the laches of the holder did not commence until the expiration of the three days grace. Therefore, on the Act of Parliament, and on the authorities, I think we are warranted in deciding that the three days grace ought to be 'allowed on promiffory notes as well as on bills of exchange; and confequently, that the tender made by the Defendant in this cafe is a fufficient answer to the Plaintiff's action. In addition to thele confiderations we are now told that it has been the conftant practice at the Bank, and at the principal bankers, to make this allowance on promiffory notes. Then, if we were to make a decifion in opposition to all this practice, it would be attended with the most serious confequences; for thefe notes are circulated not only throughout this country, but alfo over feveral other countries in Europe: many of them have been discounted, and intereft taken, on the fuppofition that three days grace are allowed: but, if we were to determine that no fuch allowance ought to have been made, all thofe parties would be involved in the crime of ufury: and again, all holders of VOL. II.

PP

notes.

notes, who made no demand on the makers till the expiration of the three days, and who afterwards reforted to the indorfers, will have been guilty of laches. Therefore, I am glad to find that the latter judicial determinations, and the ftatute of Anne, which was paffed for the purpose of putting promiflory notes on the fame footing with bills of exchange, warrant the practice which has obbtained in this refpect, notwithstanding the former cafes feem to be against

it.

ASHHURST, J.-I am glad that this cafe is brought before the Court in order to be folemnly determined; though I confess it is a matter of astonishment to me that this queftion could ever have admitted a doubt fince the statute of Anne, which was paffed in order to put promiffory notes on the fame footing with bills of exchange in all respects. Thẹ preamble of that A&t declares, that, for certain reasons there mentioned, both ought to be put on the fame footing; and the enacting part fays, that actions may be brought on the one in the fame manner as on the other. Now, if they were to differ in fo effential a point as that now contended for by the Plaintiff, they could not be faid to be put on the fame footing; nor could actions be brought on promiffory notes in the fame manner as on bills of exchange, if actions on the former might be commenced three days fooner than on the latter. And it happens very fortunately that, in putting this conftru&ion on the ftatute of Anne, our opinion will meet the general concurrence of mankind.

BULLER, J.-The queftion, whether three days grace fhall or fhall not be allowed on promiffory notes, has for many years paft been vexata queftio in Westminster Hall: but the practice among merchants and bankers has been uniform in favour of the indulgence. The doubt, which has arifen in our own time, has been principally founded on the determination of Mr. J. Dennifon at nifi prius; though it appears that the Jury there faid that the Judge's opinion was against the practice: and that cafe has always been handed down in print with a quære. And fince I have fat upon the Bench, I have always held at nifi prius that the three days are allowed, whether the question has arifen on the fuppofed laches of the holder, or in cafes of ufury. The cafes cited by the Defendant's counfel are extremely material; for, though they do not directly decide the queftion, they fhew that the Courts of Westminster have thought the analogy between bills of exchange and promiffory notes so strong, that the rules established with refpect to one ought also to prevail as to the other. Such is the general tendency of

all the cafes fince Lord Mansfield's time. Many of the cafes alluded to by the Plaintiff's counfel happened before the ftatute of Anne; they only fhew the ftrong difpofition which Lord Holt manifefted on all occafions to difcourage promiffory notes. It appears from them, that Lord Hot and the merchants were perpetually difputing whether or not they fhould be put on the fame footing with bills of exchange. The merchants did not contend that they might recover on notes in particular cafes only, but that notes fhould be univerfally confidered in the fame light as bills of exchange. Upon that ground they applied to the Legislature for relief; and their conduct is very strong to fhew what conftruction the statute of Anne ought to receive. The language of the preamble is exprefs that it was the object of the Legislature to put promiffory notes exactly on the fame footing with inland bills of exchange; and the enacting part pursues that intention. Therefore, though it has been now attempted to make a diftinction between bills of exchange and promiffory notes, and to fhew that the former only are beneficial to trade and commerce, yet that argument is not now open; for the Legiflature have faid directly the reverfe, and that it is for the benefit of commerce that they should be on the fame footing. The other cafes, cited by the Plaintiff's counfel, fhew how little the law on this fubject was formerly understood: but, whenever these kind of cafes have been difcuffed of late years, the Judges have all agreed that it is effential to the welfare of the trade and commerce of the country that fome certain rules fhould be eftablished to govern all cafes in future. With regard to the custom of merchants: it is true that a party cannot declare on notes on the custom, but he may declare on the ftatute, which fhews that the A&t of Parliament has been confidered in the courts of law as putting them on the fame footing with bills of exchange.

"

GROSE, J.-On reading the words of the ftatute of Anne, I have no doubt whatever but that to this purpose notes are put on the fame footing with bills of exchange. It is alfo of great importance to confider, that the cotem poraneous ufage and the modern practice agree with this conftruction; and therefore it would be attended with the most mischievous confequences if we were now to put a 'different construction on it. The late cafes, Heylin v. Adamfon, Grant v. Vaughan, and Tindal v. Brown, though not precifely in point, are strong to thew that the law is as it has been now declared to be. The Cafe of May v. Cooper is indeed strong the other way: but that cafe cannot be supported;

PP 2

ported, the true answer to it is, that when it was determined, thefe commercial fubjects were not fo well inveftigated, nor confequently fo well understood, as they are at this time. And it is very probable' that Mr. J. Dennifon formed his opinion in Dexlaux v. Hood on that of May v. Cooper but he was mifled by it. Thefore, on the general reafoning of the cafes cited by the Defendant's counfel, and on the clear and evident intention of the Legislature in paffing the ftatute of Anne, I am of opinion that the three days grace ought to be allowed on promiflory notes as well as on bills of exchange.

Judgment for the Defendant.

The KING against the Inhabitants of EATINGTON.

Two Juftices having removed Jacob Harris, the pauper, from Eatington to Hooke Norton, the order was quashed, upon appeal to the Seffions upon the following

CASE.

The pauper, being legally fettled at Hooke Norton, married the daughter of one G. Malings, who was feifed in fee of a cottage in Eatington, in which he refided. Immediately upon his marriage, in 1780, the pauper and his wife went to refide with Malings in the cottage, where they refided for three months, when they were removed by an order to Hooke Norton. During the time of the pauper's refidence at Hooke Norton, which was about a year and an half, an only son of G. Malings died; upon which G. Malings who was old and infirm, applied to the pauper and his wife to come and live with him at Eatingdon, and take care of him; and, in order to induce him fo to do, agreed to convey the cottage to the pauper. Accordingly, by indentures of leafe and releafe, dated the 21st and 29th of November, 1783, G. Malings, in confideration of £.36 therein mentioned to be paid by the pauper to Malings, granted, and conveyed, the cottage to the pauper in fee. In the release was the following provifo; viz. "Provided. always, and it is hereby declared and agreed, by and between

the