Adams’ Report of the Argument1
Suffolk Superior Court, Boston, August 1766
Alcock vs. Warden.
On a Bill of Exchange, drawn on N. York, protested.
Fitch reminded Court of the Case of Wimble and Bayard, in which he Said 10 Per Cent was allowed, upon Argument.2 Auchmuty recollected the Case by Pratts introducing a little Book, which no Body else knew. It was Marius on Bills of Exchange, which Holt calls a good Book.3 Winthrop, Price, Goldthwait &c. were enquird of and agreed that 10 Per Cent was allowd.
Otis. Viner. Title, Bills of Exchange. Goldsmith’s Note indorsed, is a Bill of Exchange.4 We dont find any Distinction, between inland and foreign Bills, even in England, and the Inconvenience which is the Reason, is greater, in the Case at Bar, than in a Bill in Eng[lan]d protested in any Part of Europe.
Auchmuty. The Custom is not the same in all the Provinces. In Phyladelphia, they allow, 20 Per Cent.5 Here 10.
Bacons Abridgment. Title Merchant and Merchandize. Of Inland Bills. Page 603.6
Cunninghams Law of Bills of Exchange.7
Gridley. The Foundation of this Damage is, that no Proscess runs from one Kingdom to another—and the Disappointment. Bills of Exchange, saving the Risque and Expence of Carriage, are of such Convenience that the whole commercial World is come into it.8
Court all of a Mind that 10 Per Cent should be allowed. Lynde thought this was not an Inland Bill.
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
2. Wimble v. Bayard was an action by the payee against the drawer of a bill for £10 drawn in Boston, which had been dishonored by the drawee at New York in June 1754. The endorsee, who had presented the bill, protested, and the payee paid him £12 2s. at New York. In the Superior Court at the Feb. 1755 term, with Auchmuty and Fitch (but not Prat) as counsel, the jury awarded the payee £12 8s., which would seem to be damages of £2 (20 percent) and interest of 8s. (6 percent for eight months). SCJ Rec. 1755, fol. 22. Min. Bk. 69, SCJ Suffolk, Feb. 1755, N–39. If this analysis is correct, it may be that the award was based on the actual damages sustained by the payee in reimbursing the endorsee under New York practice, which provided a 20 percent premium. See note 5 below. Wimble thus recognized the principle of a flat percentage recovery on a New York bill. Fitch erred in his recollection of the actual figures in the case, but the clerks (text at note 4 above) were probably correctly testifying as to the usual practice in Massachusetts.
3. John Marius, Advice Concerning Bills of Exchange, first published at London in 1651, was considered one of the leading treatises from the practical point of view. See 8 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 155–158. For Holt’s comment, see Ward v. Evans, 2 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 928–929, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 120–121 (Q.B. 1703); compare 3 Kent, Commentaries description begins James Kent, Commentaries on American Law, N.Y., 1826–1830; 4vols. description ends *125–126. Its later editions were published as part of the 1656, 1685, and 1686 editions of Gerard Malynes, Consuetudo vel Lex Mercatoria (published in Islip), a leading treatise on maritime and mercantile law. 1 Sweet & Maxwell, Legal Bibliography description begins W. Harold Maxwell and Leslie F. Maxwell, comps., A Legal Bibliography of the British Commonwealth of Nations: Vol. 1; English Law to 1800, 2d edn., London, 1955; C. R. Brown, P. A. Maxwell and L. F. Maxwell, comps., Vol. 3: Canadian and British-American Colonial Law, London, 1957. description ends 523–524. JA’s copy of the 1686 edition of Malynes, which had belonged to Jeremy Gridley, thus contained the 1684 edition of Marius. Catalogue of JA’s Library description begins Catalogue of the John Adams Library in the Public Library of the City of Boston, Boston, 1917. description ends 158–159. Prat may have cited the work for another purpose, but it does assert the general rule that the drawer or indorser is liable for “Rechange and Costs” on protest for nonacceptance. Marius, Bills of Exchange 28 (London, 4th edn., 1684).
4. 4 Viner, Abridgment description begins C. Viner, General Abridgment of Law and Equity, Aldershot, 1741–1753; 23 vols. description ends , tit. Bills of Exchange, Notes, &c., A, pl. 3: “Goldsmiths Bills are govern’d by the same Laws as other Bills of Exchange, and every Indorsement is a new Bill,” citing Holt’s opinion in Hill v. Lewis, 1 Salk. description begins William Salkeld, Reports of Cases in the Court of King’s Bench, with some special cases in the Courts of Chancery, Common Pleas and Exchequer, alphabetically digested under proper heads, from the 1st of William and Mary to the 10th of Anne, London, 1721–1724; 3 parts. description ends 132, 91 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 124 (K.B. 1693). Otis’ point seems to have been that bills drawn on London goldsmiths, although necessarily inland bills, were not distinguishable from foreign bills. In the cited case Holt had actually been dealing with the questions of the liability of an endorser upon the default of the drawer and the length of time that should be allowed the holder before presentment.
5. The rule in Philadelphia was established for bills drawn or endorsed upon England or Europe by the Act of 27 Nov. 1700, c. 70, 2 Pa. Stat. description begins Pennsylvania Statutes, Harrisburg, 1872– . description ends 86, which provided that when such bills were returned “unpaid with a legal protest,” the parties liable should pay the face of the bill, “together with twenty pounds per cent advance for the damage thereof.” See Francis v. Rucker, Ambl. description begins Charles Ambler, Reports, Court of Chancery, 2d edn., London, 1828; 2 vols. description ends 672, 27 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 436 (Ch. 1768); Morris v. Tarin, 1 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends 147 (Pa. C.P. 1785). Similar practice seems to have been followed in Rhode Island by statute and in New York by custom. The premium in the former colony was 10 percent, and in the latter 20 percent. See Brown v. Van Braam, 3 Dall. description begins Alexander J. Dallas, Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution and in the Several Courts of the United States, Philadelphia, 1790–1807; 4 vols. description ends (3 U.S. description begins United States Reports, Supreme Court, Boston, N.Y., and Washington, 1875– . description ends ) 344, 346–348 (1797); Hendricks v. Franklin, 4 Johns. description begins William Johnson, Reports, Supreme Court of Judicature, New York, N.Y., 1807–1823; 20 vols. description ends (N.Y.) 119 (1809); Herbert Alan Johnson, The Law Merchant and Negotiable Instruments in Colonial New York, 1664 to 1730 39–40 (Chicago, 1963)
6. 4 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 603: “Inland Bills of Exchange are those drawn by one Merchant residing in one part of the Kingdom, on another residing in some City or Town within the same Kingdom; and these also being found useful to Trade and Commerce, have been established on the same Foot with foreign Bills: but at Common Law they differed from them in this, that there was no Custom of protesting them, so as to subject the Drawer to Interest and Damages in Case of Non-payment, as there was on foreign Bills.” Bacon went on to quote at length the statutes, 9 & 10 Will. 3, c. 17 (1698), and 3 & 4 Ann., c. 9, §§4–8 (1704), which remedied the latter “Inconveniency” by providing for the payment of “costs, damages, and interest,” by the drawer on bills over £20 if protest was duly made. Since the Act of 9 & 10 Will. 3 was expressly limited to bills drawn in England, Auchmuty is apparently arguing on the assumption that the common law rules as to inland bills still applied in Massachusetts. As to the effect, see note 6 above. See generally J. Milnes Holden, The History of Negotiable Instruments in English Law 52–55 (London, 1955).
7. Timothy Cunningham, The Law of Bills of Exchange (London, 2d edn., 1761). At p. 15–20 Cunningham quoted Bacon description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends , note 6 above, and stated a case construing the statutes. Since much of Cunningham’s text is similarly drawn from Bacon, Auchmuty may have cited him here merely by way of confirmation.
8. Compare the dictum of Parker, C.J., in Adams v. Cordis, 8 Pick. description begins Octavius Pickering, Pickering’s Reports (Massachusetts Reports, 1822–1839), Boston, 1853–1864; 24 vols. description ends (Mass. description begins Massachusetts Reports, Exeter and Boston, 1804– . description ends ) 260, 265–266 (1829): “The ground upon which the original usage and the statute provisions have been adopted [i.e. those in note 8 above], is the great inconvenience and derangement of business which may occur, in consequence of the disappointment in regard to funds relied upon, where a bill is drawn upon a foreign country.”