lO HARVARD LAW REVIEW liament to induce the common law to recognize the written instru- ments of the law merchant. As enlightened a judge as Lord Holt , resisted reception of the promissory note into the company of legal transactions, and even now that bills and notes are established mercantile specialties the courts do not like to admit them as such in theory but seek to fit them into the common-law category of simple contracts. Checks were able to establish themselves as forms of bills, but insurance policies soon ceased to be instruments of the law merchant and have had a common-law development; and to-day bills, notes and checks are the only recognized instru- ments of the law merchant. At one time it seemed as if letters of credit might be so treated, so that the promise of a merchant or banker as a transaction of the law merchant in the form of an irrev- ocable letter of credit could stand on its own bottom as a binding and self-sufficing legal transaction.^^ But the development of the law merchant along liberal lines and its free absorption into our common law seem to have stopped with the passing away of our earlier generation of constructive judges, and for the last half of the nineteenth century hard and fast molds were at hand into which all mercantile transactions and inventions must inevitably be fitted.^^ Hence we must perforce deal with this subject on common-law lines, and seek to give effect to the demands of com- merce by means of some common-law theory. The decisions of our courts on this subject in the past have had to do with four common-law conceptions, namely: offer, resulting in simple contract; guaranty; contract for the benefit of a third person; and estoppel. To-day it is generally assumed that the letter of credit is an offer made into a contract by extension of a credit according to its 28 Marshall, C. J., in Coolidge v. Payson, 2 Wheat. (U. S.) 66, 75 (181 7); Story, J., in Russell v. Wiggin, 2 Story (U. S.) 213, 231 (1842); Bronson, J., in Birckhead v. Brown, 5 Hill (N. Y.) 634 (1843). See also as evidence of this, dicta in Scribner v. Rutherford, 65 Iowa, 551, 22 N. W. 670 (1885); Johannessen v. Munroe, 158 N. Y. 641, 53 N. E. 535, 9 App. Div. 409 (1899), 41 N. Y. Supp. 586; Liggett v. Bank, 233 Mo. 590, 136 S. W. 299 (191 1); 2 Daniel, Negotiable Instruments, 3 ed., § 1790. 2' For example, the clearing-house when it arose, was not recognized for the pur- poses of the doctrine a^ to presentation within a reasonable time, and but for the opH portune enactment of the uniform Negotiable Instruments Law, legislation would probably have become necessary. Holmes v. Roe, 62 Mich. 199, 28 N. W. 864 (1886); Edmisten v. Herpolsheimer, 66 Neb. 94, 92 N. W. 138 (1902).
