foundation on which our modern law in relation to book accounts rests. Parker Noyes was for the plaintiff, and Webster for the defendant. In that case it was decided that if it appear by the party's "book, or by his examination, that the goods were delivered to a third person, who might be produced as a witness, the book is not competent evidence." This decision nullifies the New Hampshire practice on the subject from the earliest settlement. In a few lines, the court, without knowing that they did it, repealed nearly two hundred years of history. Judge RICHARDSON was the court. He made the decision. He imported so much from Massachusetts, where he had been actively engaged in politics and in practice, and made it the law here. It had never made any difference here, if the book of accounts was otherwise what it ought to have been, whether the goods, etc., were delivered by the plaintiff, his clerk, or errand-boy, nor whether they were delivered to the defendant, his wife, child, agent, or servant, or some other third person.

In one of the New Hampshire cases to which I have referred, the account was for several thousands of dollars. The goods were sold by a merchant in Boston and delivered to the teamsters, who in those days freighted the goods to the New Hampshire towns. One item was for a hogshead of rum, others were for bulky articles, others for dry goods, and still others for small articles. The New Hampshire merchant did not carry the hogshead of rum home in his hand, or with his own team. It is an old adage, that "A new broom sweeps clean." Many a judge, when he gets upon the bench, acts upon this adage, and is apt to attempt to immortalize himself by acting as a legislature instead of as a court.

This opinion of Judge Richardson's was one of the baldest pieces of legislation ever attempted. Whether this legislation was wise or unwise is an entirely different question.

Queen Anne was born February 6, 1664, and ascended the throne on February 7, 1702. In 1704 parliament provided that promissory notes should be negotiable, and that indorsees might maintain an action in their own names against the maker. This statute was intended to reverse the doctrine of the courts, with Sir JOHN HOLT at their head, and this is usually held to

be the foundation of the negotiability of notes in this country. However this may be, it certainly had no application to Massachusetts, Maine, New Hampshire, and probably Connecticut. At the Court of Assistants, holden at Boston, August 16, 1631, it was ordered,—

"That any bill assigned to another shalbe good debt to the pty to whome it is assigned; also that such debts due vpon bill shalbe pd before any other, & that the pty that giueth such bills shall renewe them vpon demaund & deliuy in of the olde bill.” I Records of Mass. 90.

In 1647 the general court emphasized this by providing as follows:

"It is ordered by the authority of this court, that any debt or debts due upon bill or other specialty assigned to another, shall be as good a debt and estate to the assignee as it was to the assignor, at the time of its assignation; and that it shall be lawfull for the said assignee, to sue for, and recover the said debt due upon bill, and so assigned, as fully as the original creditor might have done; provided the said assignment be made upon the back side of the bill or specialty." Colonial Laws of Province of Mass. 1647.

On October 18, 1654, they provided as follows;

"Whereas there is a great abuse in selling of judgments and executjons, and so altering the propriety of them before they be sattisfied, or goods seazed, whereby great inconveniencyes may arise as experience hath prooved, this Court doth therefore order, that after the end of this session, no person shall sell, alienate, or assigne any judgement or execution whatsoeuer; and if any shall presume to act contrary to this order, his sale, assignment, or alienation shall be vojd in lawe, and in case the partje dye after the judgment, before he hath taken out an execution, or before sattisfaction be received, his executor or administrator shall take out or renew the execution, as the testator himself might haue donne." 4 Records of Mass. (Part I) 202. By referring to 11 Plymouth Colony Records, we find the following:

"It is enacted by the Court that any debt dew by bill or specialty to another shalbe as good a debt to the Assignee as to the Assigner, and as recouerable by suite, provided the Assignment

be vnder the Assigners hand and witnesses thervnto." II Plymouth Colony Records 259.

This law is brief and comprehensive. It was enacted twenty years before Queen Anne ascended the throne, and a quarter of a century before the enactment of the famous statute making promissory notes negotiable. Although of a later date than the legislation of the Bay colony, it pointedly summarizes that legislation.

It is broadly distinguished from the English legislation, and all the customs of London in relation to goldsmiths' notes, etc., by the fact that it puts all evidences of debt under seal upon precisely the same basis as notes of hand; that is, it gives the indorsee of the one and the assignee of the other the right to recover in his own name.

In 1654, Mr. Clement Campion, deceased, was required "to answer to the complaint of Mr. R Cutt, for a debt due by bill to Mr. N. D. of Charlestown & assigned over to the said R. C." Judge Smith's Old Records 88.

In Eliza Eborne v. Joseph Philbrick, June term, 1702, the declaration was, "to answer to Eliza E. of &c widow, the order of assignee of Samuel Allen of N &c. in an action of the case for that whereas the said Joseph by his bill note or instrument in writing under his hand ready to be produced in Court bearing date the 9 May, 1700 did promise to pay unto the said S. A. Esq. or his order £5 on the last day of July then next as in & by said bill, note or instrument in writing reference to which being had will more plainly appear yet notwithstanding the said J. P. hath been several times requested by the said S. A. as also by the said Eliz. E. to pay the said sum of £5 hath refused & still doth refuse to do the same which is to the plats dam. the sum of £8." Judge Smith's Old Records 57.

In March v. Coates, at the March term of the Inferior Court of Common Pleas, in 1707, a writ was sustained an a bill of exchange, dated September 5, 1700, and under the hand and seal of the defendant. This bill had been indorsed and assigned to the plaintiff by the payee. Judge Smith's Old Records 43. The statute of Anne was not in terms made applicable to the colonies, but had it been otherwise it could have had no application to any of these three cases, for that statute only applied

to notes, etc., which came into existence after May 1, 1705. At common law, "to attach a seal to a promissory note or bill of exchange destroyed it as such." The statute of Anne did

not change this, but it is clear that the indorsee had the right to maintain this action under the Massachusetts act of 1647, which became a part of our customary law.

Prior to 1680, there were actions at law upon awards, trespass quare clausum, trespass to the person, trespass de bonis, trespass upon the case, trover, special case, covenant, dower, writs of entry, trespass and ejectment, debt on mortgage security, also actions of general and special assumpsit, on notes, for account stated, common counts, balance of account, etc., and, since 1700, the English action of ejectment, with its casual ejectors, etc. The declarations, as a rule, were clear, concise, and would be a model at the present day. Actions of review were known as early as 1669 and undoubtedly much earlier, were much in vogue as late as 1751, and, with occasional lapses, prevailed until August 17, 1878.

The indorsement of writs by attorneys was theoretically unknown until the statute of May 13, 1718, but this was in effect done, first, by the attorney for the plaintiff setting himself out as such in the writ, and, second, by the order of the court, upon the motion of the defendant, that the plaintiff furnish security, which was generally done by the attorney for the plaintiff indorsing his name upon the writ, or otherwise upon the record.

At the February term of the superior court, 1706, in Solomon Hues v. Henry Sharpe, "Mr. James Menzies being attorney for Henry Sharpe the appt. & he being no inhabitant in this province the said Menzies doth promise in court to pay the costs that shall be taxed in case he should be cast." Judge Smith's Old Records 285.

But at the February term, 1718, it was "ordered for a rule of court that henceforwards any person living out of this province taking a writ out of this court shall security to the clerk in case he be cast or drops his action to pay costs." Judge Smith's Old Records 292.

By the act of May 13, 1718, every person, principal or attorney, executor or administrator, taking out a writ of attachment against another, was required, "before he receive it out of the

clerk's office," to "endorse his surname on the back thereof towards the bottom." N. H. Laws, Russell's ed., 1726, p. 105.

This act was passed primarily to prevent the gross abuses of arrests, which were largely without cause. This act was repealed June 20, 1792.

By the act of February 9, 1791, sec. 7, it was provided "that all original writs, issuing out of the superior court of judicature, or the court of common pleas, shall, before they are served, be endorsed on the back thereof, near the bottom, by and with the name of the plaintiff, or in like manner by his agent or attorney, being an inhabitant of this state," etc.

In Farnum v. Bell, 3 N. H. 72, decided in 1824, the court held that the writ must not only be endorsed on the back, but "near the bottom" thereof, whereby the plaintiff in that action lost his case. In consequence of this decision, the phrase, "near the bottom" thereof was struck out by the act of January 2, 1829, and the law in other respects has remained substantially the same to this day.

By the act of June 23, 1813, it was provided that "each item of said extra expense and trouble be noted, by the officer who served said precept, on the back thereof."

These illustrations show how thoroughly ingrained the ancient practice of sheriff's making their returns, taking bonds, etc., and the endorsements of writs on the back side, had become. The mode of taking bail since the Revised Statutes is a modern illustration of the same thing.

On October 11, 1665, the Bay colony provided as follows: "Whereas sundry inconveniencjes doe arise by reason that plaintiffs in civil cases doe delay to enter their actions to the great expence of much pretious time, & damage to the publick, it is therefore ordered, that henceforth no action shallbe entered after the first day of the Court is ended; and in case any plaintiffe shall delay his entry longer than the first forenoone of the Courts sitting, euery such person or persons shall pay double entry money. And all persons, whither partjes or witnesses, are enjoyned to attend their respective concernes in euery Court of justice as well the first forenoone of the Court as afterwards, and shall present the whole plea and euidence before the case be comitted to the jury & no after plea or euidence shallbe ad