
    Russel vers. Oakes.
    
      (From Middlesex.)
    
    Payment by the Maker to the Promisee of a Note on Demand is a good Defence against a subsequent Indorsee for Value without Notice. Hutchinson, C. J., diss.
    
    THIS was an Action of the Case on a Note of Hand which was indorsed to the Plaintiff, and appeared to have been paid before the Indorsement. The Question was, whether the Plaintiff should recover in this Action or be barred by the Payment. ()
    
      1763.
    
      Mr. Trowbridge for Defendant.
    
    Strange, 674. It is always held when Payment is once made, a Promise is of no Force. Lucas, 287. () After the Promisee had once received it he could not recover himself; he cannot give a greater Power than he has himself. Skinner, 410. In a Declaration on inland Bills ’tis said “then wholly unpaid.” 2 Show. 495.
    
      Mr. Gridley.
    
    This Case must appear evident on our Side to any Person who is at all acquainted with the Nature of Bills of Exchange. To pay him or his Order, is there any Interest to transfer? Is not the Interest gone? The Indorser is guilty of a Fraud against the Indorsee, who has his Action for it. There is an entire Difference between this and in Case it had not been paid till after the Indorsement, for by this the Property is changed and in the Indorsee. Trade would be rendered very precarious, if such negotiable Notes can’t be discharged but by taking up of the Note.
    
      Mr. Kent.
    
    Cunningham on Bills of Exchange cites Comyns. It was formerly settled Law that the Consideration should not be called in Question—they are upon the same Footing as Inland Bills.
    
      Ch. Just.
    
    If this Action should be barred, it seems to me that one half of the Trade must be extremely precarious, for it rests upon such Bills, whose Credit must be destroyed. It destroys the Distinction between Notes negotiable and not.
    Report of the second, Argument upon Writs of Assistance.
    
      Just. Russell.
    
    There is no Difference between them till the Indorsement.
    
      
      (1) It appears by the declaration that the note in suit bore date, October 19, 1759, and was payable on demand to one James Webber or order, and by him indorsed to the plaintiff. The question of law was raised by a special verdict, which showed that the plaintiff took the note by indorsement on the 4th of August, 1761, after it had been paid, but without knowledge of the payment.
    
    
      
      (2) — v. Ormston, 10 Mod. 287.
    
   Judgment was rendered at Cambridge in August Term, 1763, for Defendant. () Ch. Just. dissentiente. 
      
       Qu. If the Reason of the Judgment in Strange, 1155, would not have been pertinent in this Case. Vid. Salk. 344; Carth. 356; L’d Raym’d, 87.
     
      
      (3) S. P. Baker v. Wheaton, 5 Mass, 512. Hemmenway v. Stone, 7 Mass. 58, But see St. 1839, c. 121, § 1; Gen. Sts. c. 53, § 10.
      The case on the next page, argued and decided at August term, 1761, seems to have been copied into the book here from notes taken at that time. That the notes were Quincy’s own appears from the memorandum prefixed to the argument of Otis, post, 55; and at the end of the case in the MS. is a reference to “Law File C,” which probably contained his original notes, now lost. It seems strange that this argument should not have been mentioned by the historians. Even John Adams, who was admitted to the bar only four days before, (ante, 35,) and to whom we are indebted for a report of the first argument upon Writs of Assistance in February 1761, (post, 469,) does not appear to have left any notice of this one, except in a letter of October 4, 1780, to Mr. Calkoen, in which he says that the question “was solemnly and repeatedly argued before the supreme court by the most learned counsel in the Province.” 7 John Adams’s Works, 267. But Adams’s diary contains only one entry between his admission and June 5, 1762. 2 John Adams’s Works, 133, 134. And his autobiography and his letters to William Tudor were written many years afterwards. Vid. post, 409, 417. Hutchinson, having received his instructions from England since the first argument, (post, 415, note,) probably considered the second argument a mere form. For copies of the papers, and other information about the Writs of Assistance, see Appendix I.
     