Carthew Sarsfield versus WITHERLY see the report and entry of this case vent  bill of exchange draw by one who be not a merchant but a gentleman make he  liable upon the custom c show SC comb SC Mod ante this be a special action on  the case find upon a bill of exchange draw in France by the defendant the son  of dr Witherle upon his father here in which the plaintiff lie the custom too  general videlicet between merchant alias personas ibidem to sit back negotiant  c and that the defendant be a merchant and draw the bill and be set forth that  the bill be protest per quod c the defendant plead special that he be a  gentleman and son and heir of sir though Witherle and traverse that he be a  merchant and upon a demurrer to this plea the defendant bad judgement in b r  and upon a writ of error bring in the exchequerchamber it be argue for the  plaintiff in error that a consideration of a promise be never traversable nor  allow to be traverse but this the promise it self which be traversable and  that it be always hold that in these case of bill of exchange that the very  act of draw a bill make the drawer a merchant within the custom as to a  special purpose to make he responsible to the party upon nonpayment and  therefore he be conclude to say the contrary in a action bring against he upon  such bill this declaration be special and in many case the matter may be  special traverse which probable may have be give in evidence upon the general  issue plead to which the court incline moreover the custom of merchant as to  draw bill never extend to any who be not merchant for if the custom shall be  so general as the plaintiff have set forth in this declaration videlicet  between all person negotiant then this not custom but commonlaw and if so the  declaration be not good because this special but the court hold it to be  reasonable that the defendant shall have liberty to traverse the special  matter because the declaration be special and a difference be take between a  consideration of a promise which be execute and a consideration which be  executory for the one be not traversable but the other be at last upon  consideration bad of the inconvenience which may ensue and the suspicion which  may increase Carthew among foreign merchant upon bill of exchange if person  who take upon themselves to draw such bill shall not be liable to the payment  thereof they all agree that the judgement shall be reverse