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CONTAINING

CASES in the Court of COMMON PLEAS, &c. beginning
in MICHAELMAS TERM in the 10th Year, and ending in
EASTER TERM in the 14th Year of the Reign of His present
Majefly KING GEORGE the THIRD.

THE THIRD EDITION:

With additional Notes of the Points determined; References to
modern Cafes, and improved TABLES of the PRINCIPAL
MATTERS, and of the NAMES of the CASES.

LONDON:

PRINTED BY H. BALDWIN AND SON, NEW BRIDGE-STREET,

FOR I. AND R. BROOKE AND J. RIDER, J. BUTTERWORTH,
W. CLARKE AND SON, AND R. PHENEY.

MICHAELMAS TERM.

20 GEO. II. 1746.

Rawlinson versus Stone. In Error. B. R.

B. A promiffory
to A. B. or
note
his order,
may be in-

note payable

of

dorfed and

HIS was an action upon the cafe, brought in the C. against Rawlinfon by Stone, upon a promiffory note, pay able to A. B. or order, and indorfed by the adminiftratrix A. B.; Rawlinfon the defendant below demurred fpecially to the declaration, and fhewed for causes of demurrer; it, That affigned over Stone, in his declaration, had not made a profert in curiam of by his admi the letters of administration; and 2dly, That it did not appear niftratrix; by whom adminiftration was granted; a third objection was taken at the bar of the C. B. viz. That an executor or admini ftrator cannot by indorfement negotiate or aflign over a pro millory note by the custom of merchants, fo as to give the indorfee an action thereupon in his own name..

and the in

dorfee being plaintiff, need not make a profert in curiam of the letters of administration, 2 Barnes,

mi

2

137, 164.
Stra. 1260.

S. C. cited
2 Bur. 1225.

executors are

This cafe was argued in C. B. three times; the last time, in Ihlary term 18 Geo. 2. by Serjeant Prime for the plaintiff there [Stone], and Serjeant Birch for the defendant there [Rawlinson], when per totam curiam, the two firft objections were overruled, because the letters of adminiftration cannot be fuppofed [See 1 Term to be in the cuftody or power of the plaintiff Stone the indorfee, Rep. K. B, and upon the trial of the caufe, it would be incumbent upon him 487. that the to fhew to the court and the jury, that the person who in- liable P riondorfed the note to him was the legal and proper adminiftrator ally on fuch of A. B.; and the third objection was likewife over-ruled, be, indorfement.] caufe it is well known to be the conflant practice and ufage among merchants for executors and adminiftrators to indorfe and negotiate both promiffory notes and bills of exchange; and the courts of justice will always endeavour to adapt the rules of law to the ufage and courfe of trade, ad ea quæ frequentius Maxim. accidunt jura adaptantur; and the courts of Law are war. ranted in this, by the words of the ftatute 3 and 4 Ann. c. 9. fect. 1. which fays, that promiflory notes, payable to any person Vol. III,

or

1

or perfons, his, her, or their order, fhall be affignable or indorfable over in the fame manner as inland bills of exchange are or may be according to the cuftom of merchants. The court faid, that the equitable intereft in the note is converted into a legal intereft, and the whole interest is vefted in the adminiftrator, who before the statute might have affigned his equitable intereft, and fince the flatute may now affign his legal interest. Judgment was given for the plaintiff Stone below by the whole court of C. B. whereupon Rawlinson brought a writ of error, and affigned the general errors; and in this term the cafe was argued by Sir Thomas Bootle for the plaintiff in error, and by Mr. Ford for the defendant in error.

Sir Thomas Bootle objected, 1ft, That a promiffory note payable to an inteftate or his order, is not affignable or indorfable over by his adminiftratrix, so as to enable the indorsee to bring an action thereupon in his own name, and that it was incumbent upon Stone the plaintiff below to have alledged and fhewn (which he has not) in his declaration, that by the cuftom of merchants inland bills of exchange are affignable and indorfable over by adminiftrators or executors; for that the Statute of the 3 of Queen Ann only makes notes of hand negotiable in the fame manner as inland bills of exchange; and he faid, in an action upon a bill of exchange, unless the plaintiff declares upon a cuftom to fupport the affumpfit according to the common form, the action will not be maintainable, and cited 1 Lord Raym. 281. 175.

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2dly, Sir Thomas Bootle objected, that the plaintiff has not in his declaration made a profert in curiam of the letters of admini ftration, for that perhaps the adminiftration in this cafe might be granted by a peculiar, and if fo, the right of committing adminiftration by fuch peculiar ought to be alledged, and is a matter of fubftance and traverfable; for de communi jure, here in England it belongs to the ordinary to grant adminiftration; and in fupport of this objection he cited Denham v. Stevenfon. 6 Mod. 241, 242. and prayed that the judgment might be reversed.

Mr. Ford for the defendant in error. Two objections are taken, 1, That a note of hand, payable to one or his order, is not indorfable by his adminiftratrix. 2d, That every indorfee of fuch note being a plaintiff, ought to bring the letters of adminiftration into court.

In anfwer to the 1st objection, it must be admitted, that promiffory notes were not affignable or indorfable in point of law before the ftatute of the 3&4 of Q. Ann, but bills of exchange, by the law and cuftom of merchants, were always indorfable; and by that ftatute notes of hand were made indorfable in like

manner

manner as bills of exchange, to the intent to encourage trade and commerce, which, the preamble of the ftatute fays, will be much advanced, if fuch notes fhall have the fame effect as inland bills of exchange, and fhall be negotiated in the like manner: an adminiftrator of a merchant, having the abfolute property of a note of hand or a bill of exchange may, by the custom, of merchants indorfe and negotiate the fame; if he could not, it would tend to difcourage rather than encourage trade and commerce, contrary to the very purview of the ftatute; for fuppofe a merchant in Holland has a bill, or a note of hand upon a merchant in London, muft his executor or administrator come here into England to fue for it, and fhall he not be able to indorfe it over? If this be law, it will go a great way towards ruining, inftead of encouraging trade and commerce. A note of hand, payable to A. B. or order, is not fo affixed to the person of A. B. individually, that nobody elfe can indorfe or negotiate the fame note; for it has been determined, that a woman, while fole, having a note of hand payable to herself or order, and being poffelfed thereof marries, the cannot by law indorse or affign it over while fhe is covert; for it is the abfolute fole property of her husband, and he alone can indorfe it. And as to what was faid by Sir Thomas Bootle, the the plaintiff below ought to have alledged and fhewn in his dration, that, by the cuftom of merchants, bills of exchange are dorfable by adminiftrators or executors, the cafe of Erifkine v. Murray, 2 Ld. Raym. 1542, is an anfwer; for there the court refolved, that the law took notice of the cuftom of merchants, without fetting it out fpecially, and that if a bill, as fet out in a declaration, appeared to be within the cuftom of merchants, it was fufficient.

In answer to the 2d objection: To be fure, he who brings an action by a particular authority, muft fhew that authority to the court; but with regard to the prefent defendant in error, who has no right to the poffeffion of the letters of adminiftration, the law will not require him to produce them to the court, becaufe it is not in his power fo to do: And in order to fhew in what cafes a perfon in pleading is or is not obliged to fhew to the court a deed or writing, Mr. Ford cited, 5 Rep. 74, 75. Wymarke's Cafe. 10 Rep. 94. a. Doctor Leyfield's Cafe. Cro. Car. 209. Gray v. Fielder. Cro. Jac. 75. Dag & Kent, v. Penkevon, and prayed that the judgment might be affirmed.

Le Chief Justice: Suppofe a plaintiff is affignee of a leafe affigued to him by an adminiftrator, is he obliged to make a profert in curiam of the letters of adminiftration? I am of opinion he is not. There hath been no cafe cited, on either fide of the queftion, whether the present action is maintainable or not: The act of parliament has made promiffory notes indorfable and affign

B 2

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