Page:Harvard Law Review Volume 32.djvu/787

751 ACCELERATION PROVISIONS IN TIME PAPER 751 safe use of an indispensable commercial agency. The commercial world needs and seeks for the plain workable rule rather than for the somewhat abstract right in each case." It must not be forgotten, however, that these rules of certainty are not mathematical formulae evolved out of the pure reason of the judges, but are business requirements created by business needs and susceptible of modification with changing commercial conditions. Law is made for business, not business for law. While the influence of custom on legal principles has sometimes been exaggerated,^ the history of negotiable instruments leaves no doubt that the courts have based the governing principles upon actual commercial practice, though modifpng it when it seemed unrea- sonable or out of accord with general considerations of justice.^ Judge Amidon remarks with his refreshing common sense : ^ ''The rule requiring certainty in commercial paper was a rule of com- merce before it was a rule of law. It requires commercial, not mathe- matical, certainty. An uncertainty which does not impair the functions of negotiable instruments in the judgment of business men ought not to be regarded by the courts. The fine phrase of Chief Justice Gibson in the case of Overton v. Tyler, 3 Pa. 346,. . . that a negotiable instru- ment *is a courier without luggage,' has been made to do much service in the discussion of this subject. The real question, however, is who shall determine what constitutes 'luggage' — the business world, or the judge in his Hbrary? In no branch of the law has the sound judg- ment of the English courts shown itself more conspicuously than in the treatment of this subject. Whenever a new instnmient, varying in some of its features from the ordinary promissory note or bill of exchange, ' J. C. Carter, Law, its Origin, Growth, and Function; criticized by J. C. Gray, The Nature and Sources of the Law, §§ 598-641. « Goodwin v. Robarts, L. R. 10 Ex. 337 (1875); 2 Cajipbell's Lives of the Chief Justices, 407, and note, London, 1849. ^ Cudahy Packing Co. v. State National Bank, 134 Fed. 538, 542-43 (C. C. A., 8th, 1904). For presentations of a similar view as to corporate bonds, see 2 Machen on Corporations, § 1734 ff. Edelstein v. Schuler, [1902] 2 K. B. 144; Mercer County v. Hacket, i Wall. (U. S.) 83, 95 (1863), per Grier, J.: "A mere technical dogma of the courts or the common law can not prohibit the commercial world from inventing or using any species of security not known in the last century. Usages of trade and com- merce are acknowledged by courts as part of the common law, although they may have been unknown to Bracton or Blackstone. And this malleabihty to suit the necessities and usages of the mercantile and commercial world is one of the most valuable char- acteristics of the common law." First National Bank of Springfield, Ohio v. Skeen, loi Mo. 683,687, 14 S. W. 732 (1890). The unfortimate results of a rigid a priori doctrine are pointed out by A. M. Kidd in 6 Cal. L. Rev. 444 (1918). See note 166.