Page:United States Reports, Volume 1.djvu/206



1787. . The drawer is the lawgiver, and directs the payment as he pleases; the receiver knows the term, acquiesces in them, and must conform.

There have doubtless been many draughts made payable to the party himself, without more, generally perhaps to prevent their negotiability:–Whether these draughts can properly be called Bills of Exchange, even between the parties themselves, seems to have been left in some doubt by the modern Judges. Certainly there are draughts, in the nature of Bills of Exchange, which are not strictly such, as those issuing out of a contingent fund; these, (say the Judges in 2 Black. Rep. 1140.) do not operate as Bills of Exchange, but, when accepted, are binding between the parties. The question, however, here, is not whether this would be a good Bill of Exchange, between the drawer, payee, and acceptor, but whether it is indorsable.

Marius's Advice is an old book of good authority; in page 141 he mentions expressly such a Bill of Exchange as the present, and the effect of it, and he fays, that the Bill not being payable to a man or his Assigns or Order, and assignment of it will not avail, but the money must be paid to the man himself. In 1 Salkeld 125, it is said, that it is by force of the words, ‘‘ or order’’ in the Bill itself, that authority is given to the party to assign it by indorsement.– In 3 Salk. 67 it is ruled, that where a Bill is drawn payable to a man, ‘‘ an order,’’ it is within the custom of merchants; and such a Bill may be negotiated and assigned by custom and the Contract of the Parties. And in 1 Salk. 133 it is expresly said by the Court, that the words ‘‘ or to his order,’’ give the authority to assign the Bill by indorsement, and that without those words the Drawer was not answerable to the indorsee, although the Indorser might.

An argument of some plausibility is drawn in favor of the Plaintiff from the similarity of Promissory Notes to Bills of Exchange. The statute of 3 & 4 of Ann appears to have two objects; -– one to enable the person to whom the Note is made payable, to sue the drawer upon the Note as an instrument (which he could not do before the Act) and the other to enable the Indorsee to maintain an action in his own name against the drawer. The words in this Act which describe the Note on which an action will lie for the Payee, are said to be the same as those on which the action will lie for the indorsee, namely, that if shall be a Note payable to any person, or his Order; and it appearing by adjudged cases, that an action will lie for the Payee although the words ‘‘or order ’’ are not in the note, it follows (it is contended) that an action will also lie for the Indorsee, without those words. If the Letter of the Act was strictly adhered to, certainly neither the Payee, nor Indorse, could support an action on a Note, which did not contain such words on negotiability as are mentioned in the Act; yet the construction of the Judges has been, that the original payee may support an action or a Note not made assignable in terms.The foundation of this construction does not fully appear in the cases, but it was probably though consonant to the Spirit of