case Witherley against SARSFEILD Michaelmas term James b r roll a bill of  exchange draw by a gentleman travel beyond sea for education be within the  custom of merchant SC holt SC vent SC comb SC Carth error in the exchequer  Chamber upon a judgement in the king bench where the plaintiff declare in case  upon the custom of merchant that if any merchant or other trade person make  and direct any bill of exchange direct to another Payable to any merchant or  any other trade person and the same bill be tender and for want of acceptance  be protest that in such a case the drawer by the custom be Chargeable to pay c  that the defendant at parish do draw a bill on his father here in London  Payable to the plaintiff that the same be present but refuse and he accord to  the custom protestavi sive protestar causavi predict billam c whereby he  become Chargeable and in consideration of the premise do assume c the  defendant plead that he be a gentleman the son and heir of dr Thomas Witherley  and at the time of draw the bill be a traveller and at parish for his better  education c and that he be neither then nor any time from his birth hitherto a  merchant or trader or do ever deal as such and that he be then at parish as a  gentleman and traveller as aforesaid without hoc that he be or ever be a  merchant or person trade by way of merchandise between parish and London well  alibi wherever prout the plaintiff suppose et hoc a preparation be verify the  plaintiff demurrer and show for cause that the plea amount to a general issue  be double uncertain and want form shower KB judgement for the defendant in the  king bench and the plaintiff bring a writ of error I argue for the plaintiff  that this plea be ill because it do amount to the general issue and we have  show it for cause it answer no more than may be give in evidence it answer the  assumpsit only by way of argument beside here be a assumpsit ground upon  consideration of all the premise which be a consideration execute and  consequent not traversable otherwise where it be executory and so be the  Anonymous case cro Elizabeth and smith v Hitchcock cro Elizabeth and leo  indebitatus plea that he give bind for that money without hoc that he be  indebt aliter well elsewhere modus and hold ill because a traverse of the  consideration which be not traversable and amount to the general issue and  though but matter of form yet show for cause it be all one beside the matter  of this plea be ill for it be repugnant in itself for he admit himself to have  draw the bill and yet traverse that he never be a merchant whereas the bare  negotiate of a bill of exchange make he a merchant for that purpose the very  act of take up money in a foreign country and undertake for the repayment here  by bill of exchange be such a act of merchandise as you will take notice of  money now be become merchandise and some man business be whole in its exchange  the rate and profit of exchange be now certain know a man may be a dealer or  trader in one sort or kind that be not so general though he be not a trader so  as to be capable of be a bankrupt yet he may be a trader to oblige himself by  his own act the parliament in the last statute of bankrupt make a quaere  whether a man that have a stock in a company be a trader and therefore by  express provision do except they a so that a little matter will make a man a  trader beside the inconveniency will be great both at home and abroad and work  a manifest wrong if a see car c and and will c Geo c S Geo c Geo c Peer wms ld  ray Bl Com cook bank law shower KB er p a bill be Payable to he he have the  advantage of it though a gentleman acquire ration he ought to be bind if a  traveller bill draw beyond sea shall not enforce a payment upon a protest our  English gentry must suffer in their credit when by their law they be  answerable though not as merchant and by we must not the necessity and  usefulness of transfer money easy by bill of exchange command all the  encouragement imaginable and therefore I pray a reversal shower KB hoil e  contra by their own show he must be a merchant else not within the custom and  be to have traverse that and they have confess it by their demurrer holt chief  justice it be not every plea that amount to a general issue that be ill and  the custom be the foundation and the plea be a answer to that and therefore  well enough but this draw a bill must sure make he a trader for that purpose  for we all have bill direct to we or Payable to we which must be all avoidable  if the negotiate a bill will not oblige c then hoil take exception to the  declaration as uncertain because say protestavit sive protestar causavi which  be uncertain to which I answer that the one be surplusage and the other be  good if it have be cause to be protest this protest will have be good evidence  of it if it have be protest our cause it to be protest will have maintain it  beside this be all admit by their plea for they agree that it be protest but  say that they be not bind to pay it and so we have judgement reverse afterward  I move in the court of king bench for judgement for the plaintiff and show  they the case of Claxton v swift b where be judgement for the defendant in  banc king and that judgement reverse and afterward judgement in banc king for  the plaintiff upon the remittitur and so be the case of Faldoe v ridge Yelv  Ent Trin James rot c and accord we have rule for the plaintiff for judgement  whereby my client get his debt on a writ of enquiry from the bail the  defendant be go for Ireland