bearer, the custom could not have that effect, because, being recent, it formed no part of the ancient law merchant. For the reasons we have already given we cannot concur in thinking the latter ground conclusive. While we quite agree that the greater or less time during which a custom has existed may be material in determining how far it has generally prevailed, we cannot think that, if a usage is once shewn to be universal, it is the less entitled to prevail because it may not have formed part of the law merchant as previously recognised and adopted by the Courts. It is obvious that such reasoning would have been fatal to the negotiability of foreign bonds, which are of comparatively modern origin, and yet, according to Gorgier v. Mieville, 3 B. & C. 45, are to be treated as negotiable. We think the judgment in Crouch v. The Crédit Foncier, Law Rep. 8 Q. B. 374, may well be supported on the ground that in that case there was substantially no proof whatever of general usage. We cannot concur in thinking that if proof of general usage had been established, it would have been a sufficient ground for refusing to give effect to it that it did not form part of what is called "the ancient law merchant."

In addition to the cases we have already referred to, in which usage has been relied on as making mercantile instruments negotiable, the case of Lang v. Smyth, 7 Bing. 284, was cited as shewing that the question with reference to instruments of this description turns upon how far the particular instrument has by usage acquired the quality of negotiability. The action had reference to Neapolitan bonds with coupons attached to them, which latter referred to a certificate. The plaintiff's agent being in possession of the coupons belonging to the plaintiff, but not of the certificate, fraudulently pledged the coupons with the defendant, who took them bonâ fide. On an action by the plaintiff to recover the amount received by the defendant on the coupons, Tindal, C.J., left it to the jury to say whether the coupons without the certificate "passed from hand to hand like money or bank notes," in other words, "whether they had acquired, from the course of dealing pursued in the City, the character of bank notes, bills of exchange, dividend warrants, exchequer bills, or other instruments which formed part of the currency of this country." The jury, indeed, found in the negative, but it was held by the Court of Common Pleas that the question had been rightly left to them. If the usage had been found the other way, and the Court had been satisfied with the verdict, it would no doubt have been upheld.

We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if

contrary to positive law, including in the latter such usages as, having been made the subject of legal decision, and having been sanctioned and adopted by the Courts, have become, by such adoption, part of the common law. To give effect to a usage which involves a defiance or disregard of the law would be obviously contrary to a fundamental principle. And we quite agree that this would apply quite as strongly to an attempt to set up a new usage against one which has become settled and adopted by the common law as to one in conflict with the more ancient rules of the common law itself. Thus, it having been decided in the two cases of More v. Manning, 1 Comyns' Rep. 311, and Acheson v. Fountain, 1 Str. 557, that when a bill of exchange was indorsed to A. B., without the words "or order," the bill was nevertheless assignable by A. B., by further indorsement, Lord Mansfield and the Court of King's Bench, in the case of Edie v. The East India Company, 2 Burr. 1216, held that evidence of a contrary usage was inadmissible. In like manner in Grant v. Vaughan, 3 Burr. 1516, where a cash note, payable to bearer, had been lost by the owner, but had been taken by the plaintiff bonâ fide for value, on an action on the note by the latter against the maker, Lord Mansfield having left it to the jury to say "whether such drafts as this, when actually paid away in the course of trade dealing and business, were negotiable or in fact and practice negotiable," and the jury, influenced no doubt by the natural desire to protect the owner of the note, having found for the defendant, Lord Mansfield and the Court here again set the verdict aside, on the ground that, the law having been settled by former decisions that notes payable to bearer passed by delivery to a bonâ fide holder, the judge ought to have directed a verdict for the plaintiff.

If we could see our way to the conclusion that, in holding the scrip in question to pass by delivery, and to be available to bearer, we were giving effect to a usage incompatible either with the common law or with the law merchant as incorporated into and embodied in it, our decision would be a very different one from that which we are about to pronounce. But so far from this being the case, we are, on the contrary, in our opinion, only acting on an established principle of that law in giving legal effect to a usage, now become universal, to treat this form of security, being on the face of it expressly made transferable to bearer, as the representative of money, and as such, being made to bearer, as assignable by delivery. This being the conclusion at which we have arrived, the judgment of the Court of Exchequer will be affirmed.

Judgment affirmed.

TITLE II.

THE NEGOTIABLE INSTRUMENT, A CONTRACT.

SECTION I-IN GENERAL.

Conine v. The Junction and Breakwater R. R. Co. (1866), 3 Houst. (Del.), 288, 89 Am. Dec. 230.

Action on the following instrument:

GENTLEMEN,-Eighteen months after date please pay to my own order, six thousand nine hundred dollars, for value received, that being the amount which will be due from said State of Delaware to the Junction and Breakwater Railroad Company, January 1st, 1862, out of the semi-annual instalments, which will on that day, be due to said State from Richard France under the provisions of the act of the General Assembly of said State, entitled "An Act for the encouragement of Internal Improvements in the State of Delaware," passed at Dover, January 26th, 1859, and your receipt indorsed hereon for the share of said corporation of said instalment, shall be good against said Corporation. H. W. MCCOLLEY,

Treasurer of the Junction & Breakwater R. R. Co. TO MESSRS. FRANCE, BROADBENT & Co.,

Baltimore, Md.

This instrument was indorsed by said company by the name of H. W. McColley, Treasurer, and accepted upon the face. thereof thus: "Accepted, France, Broadbent & Co." The firm of France, Broadbent & Co. was composed of Richard France, Stephen Broadbent, Sr., Stephen Broadbent, Jr., and William C. France. After acceptance the instrument was negotiated with Stephen Broadbent, Sr., who afterwards indorsed and negotiated the same with the said plaintiff. Afterward the said draft was duly presented for payment in Baltimore and payment demanded and refused, of which presentment, demand and refusal the defendant had due notice. Further facts appear in the opinion.

Gilpin, Chief Justice, delivered the opinion of the Court. Considering the third ground of defence taken by the defendant as

fatal to the plaintiff's right to recover in this action, I do not propose to express any opinion on the question as to whether the draft, which is the subject of controversy, was or not, according to its terms and meaning, made payable out of a particular fund, nor the other question as to the legal effect of the draft's having been held by Stephen Broadbent, one of the acceptors as an indorsee. Much has been said and well said on this point, but for the reason just suggested, I do not deem it at all material to pass upon them.

By agreement of the parties the original draft is made a part of the case stated, and upon examination of the draft we find that the corporate seal of the company is affixed or impressed upon the paper upon the left of the signature of H. W. McCoiley, Treasurer of the Company. The usual terms indicating the affixing of the seal, are not found at the end of the draft-they are omitted altogether. If the case had been tried at the bar of the Superior Court before a jury, the fact of, whether the seal had been rightfully affixed to the draft, might have been controverted, notwithstanding the well established legal presumption arising from the presence of the corporate seal affixed to the instrument produced, that it was placed there by competent authority; the rule being, that, when the common seal of a corporation appears to be affixed to an instrument and the signature of a proper officer is proved or admitted, the Court is bound to presume that the officer did not exceed his authority, and the seal itself is prima facie evidence that it was affixed by proper authority; and the burden of showing that it is wrongfully there rests upon the party objecting to it. Lovit v. The Steam Saw Mill Association, 6 Paige 54. The President, Manager and Company of the Berks and Dauphin Turnpike Road v. Myers, 6 Serg. & Rawle 12. Baptist Church v. Mulford, 3 Halst. (N. J.) 183. The case of St. Mary's Church, 7 Serg. & Rawle 530. The proprietors of the Mill Dam Foundry v. Hovey, 21 Pick. 417. Phillips v. Coffee, 17 Illinois 154. Johnson v. Crawley, 25 Ohio 316. Potter et al. v. Androscoggins & Kennebec R. R. Company, 37 Maine 316.

But in this case, the question as to whether the seal is rightfully or wrongfully on the draft cannot be raised. For the parties have made the seal itself, just as much as the body of the draft or the signature of the Treasurer, a part of the case stated, without suggesting the slightest doubt of it being there properly. Indeed, it is alleged in the case stated that the draft, after it was indorsed by H. W. McColley, Treasurer of the Junction and Breakwater Railroad Company, was sent by a duly appointed

committee of said company to Baltimore for acceptance, and was there accepted by France, Broadbent & Co. It passed from the hands of the Treasurer to the committee, (of course with the seal on it—for it does not appear that it ever afterwards returned to the hands of the Treasurer)-was sent by them to Baltimore, was accepted by the drawees, was negotiated by the company, and is now produced by the plaintiff with the seal on it and made a part of the case stated. All this amounts to an admission that the seal was placed on the draft rightfully and not surreptitiously, improperly or fraudulently. But aside from this admission, the presence of the seal on the draft, in the absence of evidence or statement impeaching its correctness, concludes the question here, as to its having been affixed by proper authority.

ment.

The more approved mode of executing a deed by a corporation, is to conclude the instrument by saying "In testimony whereof the common seal of the said corporation is hereunto affixed." But this is not necessary to the validity of the instruNor is it necessary to name or refer to the seal at all. Mill Dam Foundry v. Hovey 21. Pick. 417. Godard's Case 5 Co. R. 5. Com. Dig. Fait a 2. 2 Serg. & Rawle R. 504. In the case of Mill Dam Foundry v. Hovey, the instrument concluded in the words, "In witness whereof we have hereunto set our hands;" and the seal consisted of a wafer and a small bit of paper stamped with a common desk seal of a merchant. And it was contended that this was not the seal of the corporation, the words. of in testimonium being, "we have hereunto set our hands" merely. But the Court thought otherwise, and decided that it was the deed of the parties, declaring that it had been settled that words. indicating that the parties had affixed their seals, were not absolutely necessary.

The question reserved for the decision of this Court is this: whether the instrument of writing sued on and described as a bill of Exchange, does in fact and in law constitute a valid bill of exchange, so as to entitle the present indorsee and holder, William C. Conine, the plaintiff, to sue and recover upon it as such. In other words, is it transferable by mere indorsement, so as to entitle the holder by force of such indorsement, to maintain an action upon it, in his own name.

At the common law, choses in action could not be assigned, so as to give the assignee a right of action in his own name. Bills of Exchange, however, have always constituted an exception to this rule.

The origin of the latter is involved in some obscurity. It