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ARGUED AND ADJUDGED
King's Courts at Weftmintter.
By GEORGE WILSON, Esq.
SERJEANT AT LAW.
IN THREE VOLUMES.
in MICHAELMAS Term in the 10th Year, and ending in
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20 Geo. II. 1746.
Rawlinson versus Stone.
In Error. B. R.
THIS was an action upon the case, brought in the C. B. A promissory T against Rawlinson by Stone, upon a promissory note, pay.
A able to A. B, or order, and indorsed by the administratrix of his order, A. B.; Rawlinson the defendant below demurred specially may be into the declaration, and shewed for causes of demurrer; il, That
dorsed and 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 administration was granted; a third objection was a
as dorsee being taken at the bar of the C. B. viz. That an executor or admini- plaintiff, ftrator cannot by indorsement negotiate or assign over a pro- need not missory note by the custom of merchants, so as to give the in
in make a pro
fert in cue dorsee an action thereupon in his own name,
riam of the
letters of adThis case was argued in C. B. three times; the last time, in ministration,
* 2 Barnes, Hilary term 18 Geo. 2. by Serjeant Prime for the plaintiff there 137 [Slone), and Serjeant Birch for the defendant there [Rawlinson], 2 Stra. 1260. when per totam curiam, the two first objections were over. 9..
s. C. cited
2 Bur. 1225 ruled, because the letters of administration cannot be supposed (See i Term to be in the custody or power of the plaintiff Stone the indorsee ; Řep. K. B, and upon the trial of the cause, it would be incumbent upon him 487. that the
executors are to sew to the court and the jury, that the person who in- liable persondorsed the note to him was the legal and proper administrator ally on such of A. B.; and the third objection was likewise over-ruled, be indorsement.) cause it is well known to be the constant practice and usage among merchants for exccutors and adıninistrators to indorie and negotiate both promissory notes and bills of exchange; and the courts of justice will always endeavour to adapt the rules of law to the usage and course 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 statute 3 and 4 Ann. c. 9: ject. 1. which says, that promissory notes, payabię to any person
or persons, his, her, or their order, shall be assignable or indorlable over in the fame manner as inland bills of exchange are or may be according to the custom of merchants. The court said, that the equitable interest in the note is converted into a legal intereft, and the whole interest is vefted in the administrator, who before the statute might have assigned his equitable interest, and since the statute may now assign his legal intereft. Judgment was given for the plaintiff Stone below by the whole court of C. B. whereupon Rawlinson brought a writ of error, and assigned the general errors; and in this term the case was argued by Sir Thomas Bootle for the plaintiff in error, and by Mr. Ford for the defendant in error.
Sir Thomas Bootle obje&ted, 1/, That a promissory note payable to an intestate or his order, is not assignable or indorfable over by his administratrix, so as to enable the indorsee to bring an a£tion thereupon in his own name, and that it was incumbent upon Stone the plaintiff below to have alledged and shewn (which he has not) in his declaration, that by the custom of merchants inland bills of exchange are assignable and indorsable over by ad. ministrators or executors; for that the Statute of the 3 & 4 of Queen Ann only makes notes of hand negotiable in the same manner as inland bills of exchange; and he said, in an action upon a bill of exchange, unless the plaintiff declares upon a cus. tom to support the as umpht according to the common form, the action will not be maintainable, and cited a Lord Raym. 281. 175.
adly, Sir Thomas Bootle objected, that the plaintiff has not in his declaration made a profert in curiam of the letters of admini. stration, for that perhaps the administration in this case might be granted by a peculiar, and if so, the right of committing administration by such peculiar ought to be alledged, and is a matter of fubftance and traversable ; for de communi jure, here in Eng. land it belongs to the ordinary to grant administration; and in fupport of this objection he cited Denham v. Stevenson. 6 Mod. 841, 242, and prayed that the judgment might be reversed.
Mr. Ford for the defendant in error. Two objections are taken, if, That a note of hand, payable to one or his order, is not indorsable by his administratrix. 2d, That every indorsee of fạch note being a plaintiff, ought to bring the letters of admini. Atration into court.
In answer to the 11 objection, it must be admitted, that pro. missory notes were not-assignable or indorfable in point of law before the fatute of the 3 & 4 of Q. Ann, but bills of exchange, by the law and custom of merchants, were always indorsable ; and by that statute notes of hand were made indorfable in like manner as bills of exchange, to the intent to encourage trade and commerce, which, the preamble of the statute says, will be much advanced, if such notes shall have the same effect as in: land bills of exchange, and shall be negotiated in the like man. per: an administrator of a merchant, having the absolute property of a note of hand or a bill of exchange may, by the custom of merchants indorse and negotiate the same; if he could not, it would tend to discourage rather than encourage trade and commerce, contrary to the very purview of the statute; for suppose a merchant in Holland has a bill, or a note of hạnd upon a merchant in London, muft his executor or administrator come here into England to sue for it, and shall he not be able to indorse it over ? If this be law, it will go a great way towards ruining, instead of encouraging trade and commerce. A note of hand, payable to A. B. or order, is not so affixed to the person of A. B. individually, that nobody else can indorse or negotiate the same note ; for it has been determined, that a woman, while sole, having a note of hand payable to herself or order, and being pos. sessed thereof marries, The cannot by law indorse or assign it over while she is covert; for it is the absolute sole property of her husband, and he alone can indorse it. And as to what was said by Sir Thomas Bootle, that the plaintiff below ought to have al. ledged and shewn in his declaration, that, by the custom of merchants, bills of exchange are indorsable by administrators or exccutors, the case of Eriskine v. Murray, 2 Ld. Raym. 1542, is an answer; for there the court resolved, that the law took notice of the custom of merchants, without setting it out specially, and that af a' bill, as set out in a declaration, appeared to be within the custom of merchants, it was sufficient.
In answer to the 2d objection: To be sure, he who brings an action by a particular authority, must shew that authority to the court; but with regard to the present defendant in error, who has no right to the possession of the letters of administration, the law will not require him to produce them to the court, be. cause it is not in his power so to do: And in order to shew in what cases a person in pleading is or is not obliged to shew to the court a deed or writing, Mr. Ford cited, 5 Rep. 74, 75. Wymarke's Cafe. 10 Rep. 94. a. Doflor Leyfield's Café. Cro. Cár. 209. Gray v. Fielder. Cro. Fac. 70. Dag & Kent, s. Penkevon, and prayed that the judgment might be affirmed. .
Lee Chief Justice: Suppose a plaintiff is assignee of a lease asligned to him by an administrator, is he obliged to make a profert in curiam of the letters of administration ? I ain of opinion he is not. There hath been no case cited, on either side of the question, whether the present action is maintainable or not: The act of parliament has made promissory notes indorfable and affign