The authorities relied on on the part of the plaintiff do not appear to us materially to conflict with this view. Glyn v. Baker, 13 East 509 (1817), which was an action to recover India Bonds, and in which it was held that such bonds did not pass by delivery, the bonds were not made payable to bearer, and there was a total absence of proof that they passed by delivery, though it was asserted by counsel in argument that when these bonds, which in the first instance were made payable to the treasurer of the company had been indorsed by him, they were afterwards negotiable and passed by delivery from one to another. The inconvenience which would have arisen from this decision was remedied by the immediate passing of 51 Geo. 3, c. 64, by which bonds of the East India Company were made transferable by delivery.

The case of Partridge v. Governor and Company of the Bank of England, 9 Q. B. 396; 15 L. J. Q. B. 395 (1846), and which, amongst other things, turned on the negotiability of dividend warrants of the Bank of England is not, so far as that question is concerned, altogether satisfactory, as the decision turned also upon other points. The bank were in the habit of paying dividends to those entitled to them by warrants, and it was pleaded and proved that by a usage of sixty years' standing of the banks and merchants of London, these warrants which are not made to bearer were nevertheless negotiable so soon as the party to whom they were made payable had annexed to them the receipt which the bank required before payment would be made. Such a warrant had been obtained by an agent of the plaintiff authorized to receive his dividend, and had been made over to the defendants for good consideration, in fraud of the plaintiff, so far as the agent was concerned, but without knowledge of such fraud on the part of the defendants. The warrant had been delivered by the defendants to the

bank, with whom they had an account, to be carried to their credit, and the amount had been entered to their credit in the cash book of the defendants, but had not been carried to their drawing account. The Court of Queen's Bench held this proof of the custom to be a good defence. The Court of Exchequer Chamber reversed their judgment, on the ground among others, that the custom relied on was "rather a practice of trade than a custom properly so called, and that such an instrument conferred no right of action on an assignee." We quite feel the force of this distinction, though it is not quite so clear in what sense it was here intended to be applied. Possibly what was meant was, that the custom applies to the warrants of a particular company, and therefore could not form the subject of any general mercantile usage.

In Dixon v. Bovill, 3 Macq. 1 (1856), where the note was "to deliver so much iron when required to the party lodging this document with me," there was neither a promise to bearer, nor was there any proof whatever of any usage whereby such notes were dealt with as negotiable. The case has therefore, with reference to its facts,

no bearing on the present.

In Crouch v. The Credit Foncier of England, L. R. 8 Q. B. 374 (1873), the defendants, a limited company, had issued bonds payable to bearer, "subject to the conditions indorsed on this debenture"; and by the conditions so indorsed the bonds were to be paid off by a certain number being drawn at stated periods; in which respect, it may be observed, they bore a close resemblance to the bonds of foreign governments when loans are thus raised by way of bond. A bond thus made having been stolen from the lawful owner, and having been purchased bona fide by the plaintiff from the thief, was drawn for payment. The plaintiff claimed payment, which was

refused, whereupon the action was brought. It was there held by three Judges of the Court of Queen's Bench that the plaintiff could not recover; first, because, even assuming that a promise to pay under seal could be considered a promissory note, here the conditions annexed to the promise took away that character from the instrument. No evidence had been offered at the trial as to whether these or similar documents were, in practice, treated as negotiable, nor was any express admission made as to the point; but it was assumed from the report of the learned Judge before whom the cause was tried, that this had been tacitly admitted. But it was said that these instruments having been only of recent introduction, it followed that such custom, to whatever extent it had gone, must also have been quite recent. Under these circumstances the Court held that, while it was incompetent to the defendants, as an individual company, to give to that which was not a negotiable instrument at law the character of negotiability by making it payable to 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 previousfy recognized 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 (1824), are to be treated as negotiable. We think the judgment in Crouch v. The Credit Foncier, L. R. 8 Q. B. 374 (1873) 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 (1831) 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 has reference to Neapolitan bonds with coupons attached to them, which latter referred to a certificate. 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 bona 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 moneys 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 will 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 (1719), and Acheson v. Fountain, 1 Str. 557 (1736), 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 (1761), held that evidence of a contrary usage was inadmissible. In like manner, in Grant v. Vaughan, 3 Burr. 1516 (1764), where a cash note, payable to bearer, had been lost by the owner, but had been taken by the plaintiff bona 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 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 their verdict aside, on the ground that, the law having been settled by the former decisions that notes payable to bearer passed by delivery to a bona 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 incom