Promissory notes were made negotiable in England by the statute of III. & IV. Anne; but it has been doubted there whether a note, payable to the maker's own order, was a negotiable note. (y)1 In this country it is so undoubtedly. In
(vw) Shaw v. Knox, 98 Mass. 214.
(vx) Lewis v. Williams, 4 Bush, 678.
(w) Lloyd v. Oliver, 12 E. L. & E. 424; s. c. 18 Q. B. 471.
(x) Marine & F. Ins. Bank v. Jauncey, 3 Sandf. 257; Wheeler v. Stone, 4 Gill, 38; Hopkins v. Beebe, 26 Penn. St. 85; Sands v. Matthews, 27 Ala. 399.
(xx) The Davenport Nat. Bank v. Ho-meyer, 45 Mo. 145.
(y) Written securities, in the form of promissory notes, made payable to the maker or his order, and by him indorsed, are an irregular kind of instrument, which has grown into use among merchants, since the statute of Anne, and is now extremely common in this country and in England. At what precise time they first came into use, and what was the occasion which gave rise to them, it is impossible to say. Baron Parke, in Hooper v. Williams, 2 Exch. 21, charac1 See Goodwin v. Robarts, L. R. 10 Ex. 337, for a history of negotiable securities, in the judgment of Cockburn, C. J. - K.
New York * it is provided by statute, that a promissory note " made payable to the order of the maker thereof, or terizes them as securities, in an informal, not to say absurd, form, probably introduced long after the statute of Anne for what good reason no one can tell - and become of late years exceedingly common. So Chief Justice Wilde, in Brown v. De Winton, 6 C. B. 342, said that notes in this form, according to his experience, which extended over a period exceeding forty years, were very far from uncommon. They seem not to have attracted the attention of courts until a recent date. It has always been the received opinion in this country that instruments in this form were negotiable within the statute of Anne, and that they differed in no material particular from notes in the ordinary form. Such also, according to the observation of eminent counsel, in Brown v. De Winton, was the received opinion in England, until the case of Flight v. Maclean, 16 M. & W. 51. Since that case, the nature and construction of instruments of this kind have been very learnedly and elaborately discussed by the three principal common-law courts in Westminster Hall. The case of Flight v. Maclean came up in the Court of Exchequer, in 1846. The declaration stated that the defendant made his promissory note in writing, and thereby promised to pay to the order of the defendant £500 two months after date, and that the defendant then indorsed the same to the plaintiff. To this there was a special demurrer, assigning for cause, that it was uncertain whether the plaintiff meant to charge the defendant as maker or as in-dorser of the note, and that a note payable to a man's own order was not a legal instrument, and could not be negotiated. The court sustained the demurrer without much discussion, "on the ground that the instrument in question, made payable to the maker's order, was not a promissory note within the statute of Anne, winch requires that a promissory note, to be assignable, shall be made payable by the party making it to some 'other person,' or his order, or unto bearer." During the argument, however, Parke, B., put to the counsel this question: "Though by the law-merchant the note cannot be indorsed, could not the defendant make this a promissory note by indorsing it to another person ' " This case was followed the next year in the Queen's Bench by the case of Wood v. Mytton, 10 Q. B.
805, in which precisely the same question was presented as in Plight v. Maclean, except that in the latter it arose on a motion in arrest of judgment, whereas in the former it arose on a special demurrer. The question was argued at considerable Length, and Lord Denman, alter a very minute examination of the statute of
Anne, held that the instrument declared on was a promissory note within the terms of the statute, and judgment was given for the plaintiff. It is to be observed, however, that Patteson, J., during the argument of this case, put to the counsel a question similar to that put by Baron Parke, in Flight v. Maclean. "Whatever," said he, "may be the case with respect to a note like this before indorsement, may it not, as soon as it is indorsed, come within the statute, either as a note payable to bearer, if it is indorsed in blank, or as a note payable to the person designated, if it is indorsed in full? " In 1848 the question came up again in the Court of Exchequer, in the case of Hooper v. Williams, 2 Exch. 13. The instrument declared on in this case was similar to those in the two former cases, being made payable to the defendant's own order, and by him indorsed in blank. The pleader, however, adopting the suggestion of Mr. Baron Parke and Mr. Justice Patteson, declared as upon a note payable to bearer. At the trial the defendant objected that there was a variance between the note and the declaration, and the case coming before the court in bane upon this objection, Parke, 15., in delivering the opinion of the court, said: " It appears to us, that the instrument in this case was, when it first became a binding promissory note, a note payable to bearer, and consequently was properly described in the declaration. This view of the case reconciles the decision of this court in Flight v. Maclean, with that of the Queen's Bench in Wood v. Mytton; but not the reasons given for those decisions. In the case in this court the declaration was bad on special demurrer, as it did not set out the legal effect of the instrument. In that in the Queen's Bench, the motion being for arrest of judgment, the declaration was, in substance, good; for it set out an inartificial contract, which had the legal effect of a valid note payable, as staled on the record, to the plaintiff. The difference between the two courts in the construction of the statute is of no practical consequence, as, in our view of the case, securities in this informal, not to say absurd form, are still not invalid; and it might be of much inconvenience if they were, for there is no doubt to the order of a fictitious * person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker, and all persons having knowledge of the facts, as if payable to bearer. "(z)