Page:Bradley v. Trammel.pdf/4

Rh  Rh   that he can maintain an action at law in his own name, but it must be in the name of the payee or his representatives."

Chancellor Kent, in his Commentaries, 3 vol. 73, says, "It was a question much discussed before the statute of Anne, whether notes were not, by the principles of the law-merchant, to be held as bills, and Lord Holt rigorously and successfully resisted any such attempt.” In the case of Nicholson v. Sedgwick, 1 Raym. 180, decided seven years before the statute of Anne, the plaintiff brought an action of assumpsit, and in his declaration averred that the defendant made a note in writing, by which he promised to pay one Mason, or to the bearer thereof, £100; that Mason delivered the note to the plaintiff for £100 in value received, and that for the non-payment of this £100 by the defendant, the plaintiff brought this action, and upon a motion in arrest of judgment, the court held that the action could not be brought in the name of the bearer, but that it ought to be brought in the name of him to whom the note was made payable. And the same point was resolved in the cases of Horton v. Coggs, 3 Lev. 299, and Hodges v. Steward, 1 Salk. 125; 12 Mod. 36.

These cases are directly in point, and if regarded as authority, are decisive of the present question. The case of Clarke v. Martin, 2 Ld. Raym. 757, decided in the ﬁrst year of Queen Anne, was an action on the case, and one count in the declaration was upon the custom of merchants, as upon a bill of exchange, and showed that the defendant gave a note, by which he promised to pay to the plaintiff or his order. Upon a motion in arrest of judgment, Lord Holt decided against the action, and said: "This note could not be a bill of exchange. That the maintaining of these actions upon such notes, were innovations upon the rules of the common law, and invented in Lombard street, which attempted in these matters of bills of exchange, to give laws to Westminster Hall." Justice Gould concurred with him in arresting judgment.

In the subsequent cases of Burton v. Souter, 2 Ld. Raym. 774, and Williams v. Cutting, 2 Ld. Raym. 825, it was held by the same court, that promissory notes were not negotiable, within the custom of merchants. These adjudications are clear