clerk vers martin a promissory note Payable to I S or order be not a  negotiable instrument within the custom of merchant SC salk nor be a  promissory note Payable to I S or bearer S but it be evidence of money lend to  I S where entire damage be give it can be intend that no part of they be give  in respect of a particular count in the declaration unless that count be  insensible SC salk the plaintiff bring a action upon his case against the  defendant upon several promise one count be upon a general indebitatus  assumpsit for money lend to the defendant another count be upon the custom of  merchant as upon a bill of exchange and show that the defendant give a note  subscribe by himself by which he promise to pay to the plaintiff or his order  upon non assumpsit a verdict be give for the plaintiff and entire damage and  it be move in arrest of judgement that this note be not a bill of exchange  within the custom of merchant and therefore the plaintiff have declare upon it  as such be wrong but that the proper way in such case be to declare upon a  general indebitatus assumpsit for money lend and the note will be good  evidence of it but it be argue by sir Bartholomew shower the last Michaelmas  term for the plaintiff that this note be Payable to the plaintiff or his order  be a bill of exchange inasmuch as by its nature it be negotiable and that  distinguish it from a note Payable to I S or bearer which he admit be not a  bill of exchange because it be not assignable nor endorsable Lord Raymond by  the intent of the subscriber and consequent not negotiable and therefore it  can be a bill of exchange because it be incident to the nature of a bill of  exchange to be negotiable but here this bill be negotiable for if it have be  endorse Payable to I n I n may have bring his action upon it as upon a bill of  exchange and may have declare upon the custom of merchant why then shall it  not be before such endorsement a bill of exchange to the plaintiff himself  since the defendant by his subscription have show his intent to be liable to  the payment of this money to the plaintiff or his order and since he bath  thereby agree that it shall be assignable over which be by consequence that it  shall be a bill of exchange that there be no difference in reason between a  note which say I promise to pay to I S or order c and a note which say I pray  you to pay to I S or order c they be both equal negotiable and to make such a  note a bill of exchange can be no wrong to the defendant because he by the  sign of the note have Acc salk a make himself to that purpose a merchant Ventr  Sarsfield v Witherle and have give his consent that his note shall be  negotiate and thereby have subject himself to the law of merchant but holt  chief justice be all man against the action and say that this note can not be  a bill of exchange that the maintain of these action upon such note be  innovation upon the rule of the commonlaw and that it amount to the set up a  new sort of specialty unknown to the commonlaw and invent in lombardstreet  which attempt in these matter of bill of exchange to give law to  westminsterhall that the continue to declare upon these note upon the custom  of merchant proceed from obstinacy and opinionativeness since he have always  express his opinion against they and since there be so easy a method as to  declare upon a general indebitatus assumpsit for money lend c as to the case  of Sarsfield v Witherle he say he be not satisfy with the judgement of the  king bench and that he advice the bring of a writ of error gold justice say  that he do not remember it have ever be adjudge that a note in which the  subscriber promise to pay c to I S or bearer be not a bill of exchange that  the bearer can not sue a action upon such a note in his own name be without  doubt and so it be resolve between Horton and clog now print in lev but that  it be never resolve that the party himself to who such note be Payable can not  have a action upon the custom of merchant upon such a bill but holt chief  justice answer that it be hold in the say case of Horton v clog that such a  note be not a bill of exchange within the custom of merchant and afterward in  this easter term it be move again and the court continue to Lord Raymond er p  be of opinion Lord Raymond against the action and then Mr Branthwaite for the  plaintiff urge that if this note be not a bill of exchange within the custom  of merchant then the promise find upon it be void and then it can not be  intend that any damage be give by the jury for the breach of it but all the  damage must be intend to have be give upon the general indebitatus assumpsit  holt chief justice say that will be true if it have be void by reason of its  be insensible but this matter be sensible enough though not sufficient in law  to raise a promise and therefore one can intend but that damage be give for it  and consequent that judgement must be arrest and judgement be give quod to  express grief nil to take in hand per billam c by the opinion of the whole  court