A bill is indorsable, though not bearing To Order.
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It was disputed betwixt these parties, if a bill not bearing to order, was notwithstanding indorsable? And it was pleaded for the indorsee, There can be no more necessity to make a bill payable to order, than to make a bond payable to assignees; especially in this case, where the bill is betwixt two. In both cases an effectual obligation is contracted of loan; they are both nomina debitorum, which are always assignable by our law. Perhaps there may be a difference, where a bill is taken payable to a third party: For there it may be argued, that the possessor of the bill is more properly a mandatary than creditor; and, therefore, if the drawer of the bill that remits the money, intends that his correspondent shall have the disposal of the bill, he adjects, or order: And it is thought by some foreign writers, that otherwise the correspondent cannot indorse the bill. This, it is believed, gave rife to the words, or order; which thereupon became common in all bills; but can never be necessary, where the procurer of the bill is the lender of the money, and the creditor himself.
It was answered, That when bills debord from the settled style and tenor, they have not the extraordinary privileges, which are given only to writs of a certain form, by law and custom. It is not disputed, that the bill in question may be supported as a good ground of action, and be transmissible by assignation, having the common solemnities of law; but that it can pass by indorsation, which is an extraordinary privilege, will never be allowed. And this is the opinion of Marius and Scarlet, who maintain, in general, without any distinction, that no man can effectually indorse a bill, but what is made payable to himself and his order.
‘The Lords preferred the indorsee.’
Fol. Dic. v. 1. p. 96. Rem. Dec. v. 1. No 78. p. 154.
