case carter against down Hilary term James b r roll to covenant on a deed  whereby the defendant agree to pay certain bill of exchange a plea that the  plaintiff accord to the custom of merchant endorse the bill to a who endorse  they to b and that he the defendant pay part of they to b and tender the  remainder to the plaintiff be good although the custom be not special state  nor the tender plead with a encore pres for the custom of merchant be part of  the commonlaw and the court will take notice of it without be special plead  and encore pres be not necessary in covenant when damage and not debt be in  demand SC Mod SC Carth the judge ought to take notice of the law of merchant  be part of the commonlaw error in the exchequer Chamber of a judgement in the  king bench where the plaintiff declare in covenant of a deed recite that the  plaintiff have covenant to deliver one thousand kintals of Newfoundland fish  or so much as shall be make in that season the defendant covenant that he the  defendant will pay such bill of exchange as shall be draw on the plaintiff his  executor administrator or assign in the dwell house of Robert Aylewin merchant  in London and allege that there be a bill draw Payable to they at forty day  sight that the same be present accept and not pay c the defendant plead that  within the forty day after shower KB the bill be show the plaintiff by  endorsement on the bill accord to the custom of merchant appoint the payment  to Mr Herbert ailwin or his order and that he endorse it to one tassel that  the defendant within forty day do pay to tassel one hundred pound part thereof  and afterward tender in the house of ailwin the three hundred pound residue  which be refuse et hoc a preparation be b show skin Mod Lutw c Yelv Nov cro  throw shower KB er p verify c demurrer and joiner in demurrer judgement for  the plaintiff in b r and the defendant bring a writ of error general error  assign I argue for the plaintiff here that this plea be good the exception  take to it be two first because we do not set forth a particular custom to  warrant our endorsement second because we do not plead the tender with a  uncore priest to the first we say that the law and custom of merchant do  warrant the endorsement of foreign bill of exchange and for that all the book  case on foreign bill of exchange be a proof and it be as plain that such a  endorsement do real transfer the property of the money or content in such bill  to the endorsee and that all this law of merchant be part of the law of the  land and your lordship be oblige to take notice of that as well as of any  other law the law of merchant be part of the law of this realm be the very  word of coke a it be not like a particular custom which be confine within a  certain precinct in the realm but it be of universal extent and concern the  whole realm nay reach further for it be law a king of Illyria and concern all  country where traffic be use you do take notice of that part of it which  distinguish it from other interest in point of survivorship that law  accrescend inter trader pro kindness exchange locum non to have and this be  per law a merchant which be pro good public b debt or duty as well as ware  shall not survive Edward the word be it be the law of merchant c in the Inst  in the exposition of great Charta cap de antiquity et that which is fixed  custom he call they ancient and lawful custom of the realm per law a merchant  which be a part of the commonlaw these be the very word of the book in Inst on  the statute of Westminster the second cap to have de for the rest executor  breve de computation c coke say by the commonlaw executor shall not have  account before that statute but per law a merchant a action of account do lie  for executor and our book take notice of it shower KB and no need for set  forth a particular custom for this in Fitzherbert c if two merchant occupy  their good and merchandise in common one of they shall have a account against  the other as per law a merchant so that you take notice of that and so be the  register if foreign merchandise be waive if they belong to merchant the law  take notice of they and exempt they from seizure Edward pl in the same place  it be say that the law of merchant be know throughout the realm nay the world  in holland case   concern general statute it be agree that act of parliament  concern mystery or trade be general act I urge it only for the reason sake  which be that though it only contain under its name particular person yet be  of general influence and concern the judge will take notice of it in  Fitzherbert Abr title account the writ be general as receiver but the account  be particular and yet rule to be well be as merchant whereas if the writ be  form on a particular custom the writ ought to be so as in a rational part will  do you much good for common part c but suppose it not good by c yet it amount  to a appointment the covenant be to pay bill to he his assign or order this  endorsement shall make a assignee or servant it shall amount to demarcation  personae to receive though not so as to transfer the property to sue for and  recover and then our payment of the hundred pound will be as good payment to  he be make to his servant or order as to the second a tender and refusal  amount to a payment and performance as in case of a bind for performance of a  award without a uncore priest   light Peitoes case   in the case of underhill  v Devereux hill car sand to know facias to have restitution on extent upon  allegation of receipt of so much profit and tender of the rest exception take  to it because no uncore priest but yet overrule and in the case of Ledgingham  v Pophir Mod Rep in replevin avowry for not do service plea of a custom in the  manor at such a time and place in lieu of such service suit and tender and  refusal hold good beside uncore priest be a   light b   light but see more  full as to this Brownl see also send for Noy vern see also as to other  instance of law a merchant cro James cro car roll Abr side c naturan narrow  places p shower KB er p no where necessary that I know of but where the duty  be demand here be only covenant which be not to recover the duty but damage d  but be it otherwise wheresoever the money be Payable to a stranger or at a  particular place there needs no uncore priest as in more pl debt on a bind  condition to pay to the shower KB obligee or such as he shall appoint the  defendant plead that he appoint I m and the defendant tender and I m refuse  good without a uncore priest e and the reason be plain because the plaintiff  be never to have it but the stranger and he ought no more to have it now than  before the case of Powell v Nevil I and be the same and it be in dyer pl per  Catlin and griffin where it have a particular place of payment appoint there  it can be pay in another place and so no need of a uncore priest and so be the  case of Nicholls v Fitzherbert John Trin Henry it be pl and hold good without  it because not bind to tender in another place so be Perkins Tremain e contra  that to set forth the custom of merchant here be as necessary as in any case  and that there be no reason of a difference between a declaration and a plea  as to this purpose and that a uncore priest be necessary as in the case of  Newton v Newton roll Abr that if a man covenant to pay the plaintiff ten pound  after Michaelmas and before easter a plea of tender and refusal be not good  without say uncore priest pollexfen chief justice as to that of the law of  merchant I think we be bind to take notice of it as we do of that against  survivorship and account and this be as well know and their declaration be  that he do draw bill secundum experience mercator and if this be good they be  so then for uncore priest there be no necessity for it in any case of covenant  where damage and not the debt be in demand Ventris justice as to the  appointment this will not make a order at commonlaw because there be two  endorsement and if I give my servant a authority to receive he can authorize  another otherwise if but one then payment to the first endorsee will be a  payment to the person f therefore you here depend upon the law of merchant  which at present I think we ought to take notice of they all incline to  reverse the judgement but upon Tremains importunity adjornatur and the next  term the judgement be reverse the court hold our plea to be a good plea note  the case cite by Tremain in roll abridgment be debt and so not to the purpose