46 Ind. 62 | Ind. | 1874
This case might be disposed of by a simple reference to the opinion in Porter v. Holloway, 43 Ind. 35, as the question decided in that case is the only question which need be decided in disposing of this one. After the overruling of the petition for a rehearing in that case, however, a brief was filed by the attorney for the appellees, in which he evinces so much confidence in the belief that the court has erred in its ruling in that case, that it seems proper that we should again consider the question decided. The note on which the complaint is predicated in this case, like the note in that case, is payable at “ the bank in Delphi.” We arrived at the conclusion in that case that in order to bring a promissory note within the statute making notes payable to order or bearer in a bank in this State negotiable as inland bills of exchange, the note on its face must designate the bank in which it is payable. We did not decide that it was necessary, in’ order to make promissory notes negotiable, that they must be made payable at a desig
Chancellor Kent says: “ Promissory notes are governed, by the rules that apply to bills. The statute of 3d and 4th Anne made promissory notes payable to a person, and to his order, or bearer, negotiable like inland bills, according to the custom of merchants, and by the statutes of 9 and 10 William III., c. 17, and 3 and 4 Anne, inland bills are put upoa the footing of foreign bills, except that no protest is requisite. These statutes have been generally adopted in this country, either formally or in effect, and promissory notes are everywhere negotiable. The effect of the statute is to make-notes, when negotiated, assume the shape and operation of bills, and to render the analogy between them so strong, that, the rules established with respect to the one apply to the-other. It was a question much discussed before the statute of Anne, whether notes were not, by the principles of the-law merchant, to be treated as bills; and Lord Holt vigorously and successfully resisted every such attempt. The-history of that struggle is no longer interesting; but there is no doubt that promissory notes were recognized as mercantile instruments, and a species of bills of exchange, by the-canon law and the usage of trade; and even by the French ordinance of 1673, long before Lord Holt asserted them to-be of late English invention.” Vol. 3, p. 73.
Prof. Parsons says:' “ We have not space to examine this-question at length, and upon the authorities, but will content, ourselves with saying, that we incline to hold, first, that foreign negotiable bills were in use and were known to the law long before negotiable notes were known; and second, that-inland negotiable bills were in use before negotiable notes, which, however, is not quite certain; third, that inland bills and notes were confounded together in the use of them by-merchants, and were considered as the same thing, both by them and by some of the courts; fourth, that these notes,, although not always discriminated by name from bills of"
The statute of Anne is not in force in this State. It was not yet enacted at the date to which our adoption of the laws of England relates. Hence we must look to our own statutes for the law relating to the negotiability of promissory notes. By reference to it, we find that only such as are payable to order or bearer, in a bank in this State, are negotiable .as inland bills of exchange. All others are made negotiable by the statute, but not as inland bills of exchange. They are governed by different rules. But this question ought not to be regarded as an open one in this State. As far back in the history of the adjudications of this court as Bullitt v. Scribner, 1 Blackf. 14, it was said that promissory notes were mot governed by the law merchant, until they were put upon a footing with bills of exchange by the statute of Anne.
The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial.
Petition for a rehearing overruled.