1787.
of the Act, as the words ‘‘or order’’ could have no effect, and might be supposed immaterial, in a suit brought by the payee himself against the maker of the Note. But to extend this construction to the case of an Indorement without any authority to make it appearing on the face of the Note, would have been to violate not only the Letter but the Spirit of the Act. Consequently no auch case any where appears On the contrary, wherever the Judges peak of the effect of an indorsement, they always suppose the Not itself to have been originally made indorsable. The case of Moore versus Manning in Com. Rep. 311. was the case of a Promissory Note originally payable to one and his Order ; it was assigned without the words ‘‘ or order ’’ in the indorsement ; the question was, whether the assignee could assign it again ; The Chief Justice, at first, inclined that he could not, but it was afterwards resolved by the whole Court, that if the Bill was originally assignable, ‘‘ as it will be (say the Court) if it be payable to one and his Order, ’’ then to whomsoever it is assigned, he had all the interest in the Bill, and may assign it as he pleases. Here the whole stress of the determination is laid upon what were the original terms of the Bill, if it was made payable to one and his Order, it was assignable, even by an indorsee without the word “order ” in the indorsment ; it follows, therefore, that if the Bill was not originally payable to order, it was not assignable at all. The same point is determined, for the same reasons, in the case of Edie & Laird v. the East India Company, in 1 Black. R. 295, where Lord Mansfield says ‘‘ the main foundation is to ‘‘ consider what the Bill was in its origin ; if in its original creation ‘‘ it was a negotiable draught, it carries the power to assign it.’’ In a similar case, cited in Butler's niss prius 390 the Court held, that as the Note was in its original creation indorsable, it would be so in the hands of the indorsee, though not fo expressed in the indorsment.
These cases leave no room to doubt what have been the sentiments of the Courts in England upon the subject. To make Bills, or Notes, assignable, the power to assign them must appear in the instruments themselves ; and then, the custom of merchants, in the case of Bills of Exchange, and the Act of Parliament, in the case of Notes, operating upon the Contract of the Parties, will make them assignable.
In the case before us, no such contract appears in the Bill. The acceptance was an engagement to pay according to the terms of the Bill to Bass & Soyer ; a subsequent indorsment, not authorized by the Bill, cannot vary or enlarge that engagement, so as to subject the acceptor, by the eh law merchants, to an action at the suit of the indorsee.
Judgment for the Defendant.
SHOEMAKER
