But fough courts of law have gone the length of taking notice of assignments of choses in action, and of giving effect to them, yet almost every case they have adhered to the formal objection that eaction should be brought in the name of the assignor, and not the name of the assignee; the consequence of which rule is, that the defendant may give in evidence a release, declaration, or admission of the plaintiff on the record, to defeat the action, although it be evident such plaintiff is but a mere trustee for a third person (a). It has been observed, that the substance of the rule being done away, there can be no use or convenience in preserving the shadow of it; for where a third person is permitted to acquire the interest in a thing, whether he bring the action in his own name or in the name of the assignor, does not seem to affect the question of maintenance (b). However, in a late case (c), Lord Kenyon expressed his determination not to sanction the assignment of a chose in action, so as to allow the assignee to sue in his own name (1). The consequence of this doctrine is, that if an instrument which is not assignable at law, so as to pass the legal interest be indorsed by the person to whom it is payable to his agent to whom he is indebted generally, without any specific appropriation, the agent in case of the death of the principal will have no

(4) Bauerman 7. Radenius, 7 T. R. 663.-Banfill v. Leigh, 8 T. R. 571.Jones v. Dunlop, id. 596,--Offly v. Ward, 1 Lev. 235.-Johnson v. Collings, 1 East. 104. et vide Medlicot's case, Sel. Cas. 161.

(5) Per Buller, J. in Master v. Miller, 4 T. R. 340. et vide Winch v. Keeley, 1 T. R. 621.-Israel v. Douglass, 1 Hen. Bla. 239, and Banfill v. Leigh, 8 T. R. 571.

(c) Johnson v. Collings, 1 East. 104.-Whitwell v. Bennett, S Bos. & Pul.

559.

(1) Courts of law now take notice of assignments of choses in action, and afford them every protection not inconsistent with the principles and proceedings of tribunals acting according to the course of the common law. They endeavour in these respects to apply, as far as may properly be done, the rules and doctrines recognised in Courts of Equity. They will not there. fore give effect to a release procured by the original debtor under a covenous combination with the assignor in fraud of his assignee; nor permit the assignor injuriously to interfere with the conduct of any suit commenced by the assignee to enforce the rights, which passed under the assignment. Welshy. Mandeville, 1 Wheaton, 233. See, as to the right of the United States to se n their own name upon a Bill indorsed to their agent, Dugan v. United States, 3 Wheaton, 172. See also Skelding et al. v. Warren, 15 Johns. 270.

Upon these principles a release procured after a notice of the assignment been held to be a nullity. Andrews v. Beecher, 1 John. Cas. 411. Litfeld v. Storey, 3 John. Rep. 426. Legh v. Legh, 1 Bos. & Pull. 447. Raydv. Squire, 11 John. Rep. 47. So a satisfaction of a judgment entered up by the assignor after the assignment has been vacated. Wardell v. Eden, 2John. Cas. 121. 258. S. C. 1 John. Rep. 531. note. So a dismissal of a suit or a retraxit entered up without the consent of the assignee will be no bar to a subsequent suit. Welsh v. Mandeville, ut supra. And if the fact of the assignment be known to the court, it will not suffer the defendant, VOL 1.

B

Doctrine as ment of choses to the assignin action.

[ * 11 ]

Doctrine as legal or equitable interest in the instrument towards satisfaction of to the assignment of choses this debt but must restore it to the executor (a).

in action.

[ *12 ]

Of the distinction be

Even at the Earliest period of our history, the doctrine relating to the assignment of choses in action was found to be too great a clog on commercial intercourse; an exception was therefore soon allowed in favour of mercantile transactions. It was the observation of the learned and elegant commentator on the English laws, that in the infancy of trade, when the bulk of national wealth consisted of real property, our courts did not often condescend to regulate personalty; but, as the advantages arising from commerce were gradually felt, they were anxious to encourage it by removing the restrictions by which the transfer of interests in it was bound. On this ground, the custom of merchants, whereby a foreign Bill of Exchange is assignable by the payee to a third person, so as to vest in him the legal as well as equitable interest therein, was recognized and supported by our courts of justice in the fourteenth century; and the custom of merchants, rendering an inland Bill transferable, was established in the seventeenth century. In short, our courts, anxiously attending to the interests of the community, have, in favour of commerce, adopted a less technical mode of considering personalty than realty; and, in support of commercial transactions, have established the law merchant, which is a system founded on the rules of equity, and governed in all its parts by plain justice and good faith (b).

Having thus endeavoured to point out the peculiar properties of Bill of Exchange, in respect of its being assignable so as to give ent contracts the holder a right of action in his own name, it will be proper to

tween differ- a

as to consider

ation, and

which is presumed in the case of a bill of exchange,

&e.

(a) Williamson v. Thomson, 16 Ves. jun. 443.

(b) Per Buller, J. in Master v. Miller, 4 T. R. 342.

whose name is used, to discontinue the suit without the agreement of the assignee. M'Cullum v. Coxe, 1 Dall. Rep. 139,

There are many other cases in which the rights of the assignee have been recognised and enforced in suits at law; but it is foreign to the purposes of this note to give them a minute analysis. The reader will receive further information on the subject by consulting the subjoined cases. Perkins v. Parker, 1 Mass. Rep. 117. Wakefield v. Martin, 3 Mass. Rep. 558. Dix v. Cobb, 4 Mass. Rep. 508. Dawes v. Boylston, 9 Mass. Rep. 337. Crocker v. Whitney, 10 Mass. Rep. 316. Wood v. Partridge, 11 Mass. Rep. 488. Alner v. George, 1 Camp. N. P. 392. Tuttle v. Beebee, 8 John. Rep. 152. Meghan v. Mills, 9 John. Rep. 64. Brisban v. Caines, 10 John. Rep. 45. Inglis v. Inglis's Executors, 2 Dall. Rep. 45. Roussett v. The Insurance Company of North America, 1 Binn. 429. Woodbridge v. Perkins, 3 Day's Rep. 564. Da Costa v. Shrewsbury, 1 Bay's Rep. 211. Administrators of Compty v. Alken, 2 Bay's Rep. 481. Raymond v. Squire, 11 John. Rep. 488. Anderson v. Van Allen, 12 John. Rep. 843. Mowry v. Todd, 12 Mass. Rep. 281. Jones v. Witter, 13 Mass. Rep. 304. Bowman v. Wood, 15 Mass. Rep. 534. Martin v. Hawkes, 15 Johns. 405.

any

1st Matter of record.

ment of choto the assign

ses in action.

When a con

make a few observations on the second privilege by which it is dis- Doctrine as tanished from other simple contracts, that of its importing a sideration unless the contrary be shewn (a). Contracts are of three descriptions. ly. Specialty. Sdly. Parol or simple contracts. The first of sideration not these, viz. the judgment of, or a recognizance acknowledged be- essential to validity of a fore a court of record, on account of its being sanctioned by such bill of extribunal, cannot be impeached, or the propriety of it questioned, change, &c. action on the judgment, but only by writ of error. Nor can there be any allegation in pleading against the validity of a record, though there may be against its operation. Secondly. Specialties rank next in point of estimation. These, on account of the deliberate mode in which they are supposed to be made and executed, have always been holden to bind the party making them, although they were executed without adequate consideration (b), and consequently it is not incumbent on the plaintiff in an action upon a deed to state or prove upon what cause or for what consideration (c) it was made; and though *the defendant may be at liberty to avail himself of the illegality in the consideration, it is incumbent on him to state it in pleading, and to establish it by evidence (d). But the third description, namely, parol or simple contracts, which includes as well unsealed written contracts as those which are merely verbal, are not in general entitled to such respect, because the law presumes that such contracts may have been made inadvertently, and without sufficient reflection (e), and therefore, in general, they will not be enforced, unless the plaintiff can prove that they were made for a sufficient consideration (f). It is otherwise, however,

(a) Per Ld. Ellenborough, C. J. in Philliskirk v. Pluckwell, 2 M. and S.

395.

(b) See the argument in Sharington v. Strotton, Plowd. 308. where it is said that deeds are received as a lien, final to the party making them, although he received no consideration, in respect of the deliberate mode in which they are supposed to be made and executed; for 1st, the deed is prepared and drawn: then the seal is affixed; and lastly, the contracting party delivers it, which is the consummation of his resolution.

(c)Fellows v. Taylor, 7 T. R. 477.-Bunn v. Guy, 4 East. 200. (d) Petrie v. Hanney, 3 T. R. 424.

(e) Fonbl. 329. 333.-Sharington v. Strotton, Plowd. 308.

See the case of Bann v. Hughes, 7 T. R. 350. in which it was adjudged that all contracts are by the law of England distinguished into agreements by specialty and agreements by parol, and that there is not any such third class as contracts in writing; if they be merely written, and not spe cialties, they are parol, and a consideration must be proved. See also same case in 7 Bro. Parl. Cas. 550.-Parker v. Baylis, 2 Bos. & Pul. 77.-Johnson v. Collings, 1 East. 104.-Sharington v. Strotton, Plowd. 308.-Petrie r. Hanney, 3 T. R. 421.

[ 13 ]

*

sideration not

essential

When a con- in the case of a Bill of Exchange (a) it being scarcely ever necesto sary for the plaintiff to prove that he gave a consideration for it; validity of a and the defendant is not at liberty to prove that he received no bill of ex- consideration, unless in an action brought against him by the perchange, &c. son with whom he was immediately concerned in the negotiation of the instrument (b), or by a person who has given no value for it. In this respect, therefore, a Bill of Exchange, although it is not a specialty (c), yet it carries with it the same presumption of a consideration as a bond, or other specialty, particularly when it is in the hands of a third person (d). It is not, however, owing to the form of a Bill of Exchange, nor to the circumstance of its being in writing, that the law gives it this effect, but in order to strengthen and facilitate that commercial intercourse which is carried on through the medium of this species of security; for, notwithstanding a contract be in writing, it is essential to the validity of it, that it should in all cases be founded on a sufficient consideration, unless the writing, from its being of the highest solemnity, imports a consideration, or unless it be negotiable at law, and the interests of third persons are involved in its efficacy (1).

[ 14 ]

(a) Simmonds v. Parminter, 1 Wils. 189.

(b) Guichard v. Roberts, 1. Bla. Rep. 445.-Lewis and Cosgrave, 2 Taunt. 2.

(c) Yeomans v. Bradshaw, 3 Salk, 70. ante, 2.
(d) Philliskirk v. Pluckwell, 2 M. & S. 95.

(1) The doctrines contained in this paragraph have been frequently recognised in the United States. In general, a written promise requires a consideration no less than a parol one. Hosmer v. Hollenbeck, Day's Rep. 22. And a note made without consideration is a nude pact, and void as between the original parties to it. Pearson v. Pearson, 7 John. Rep. 26.— Stackpole v. Arnold, 11 Mass, Rep. 27. So if the consideration have totally failed. Dennison v. Bacon, 10 John. Rep. 198. Tappen v. Van Wagenen, 3 John. Rep. 465. Fowler v. Shearer, 7 Mass, Rep. 14. Livingston v. Hastie, 2 Calnes' Rep. 247.

Every note within the statute imports a consideration unless the contrary appear on the face of the note itself. Goshen Turnpike Company, 9 John. Rep. 217. Ten Eyck v. Vanderpool, 8 John. Rep. 120. And the words "value received" in a note not within the statute are prim facie evidence of a consideration sufficient to cast on the defendant the burthen of proof of the want of a consideration. Jerome v. Whitney, 7 John. Rep. 321. contra.Lansing v. M Killip, 3 Cain. Rep. 286. The holder of a bill, check, or note, is prima facie deemed the rightful owner of it, and need not prove a consideration given for it, unless where circumstances of suspicion attach to the transaction. Cruger v. Armstrong, 3 John. Cas. 5. Conroy v. Warren 3, Joan. Cas. 259. 3 Wheaton 182. And an indorsement of a note is primá facie evidence of being made for full value; and it is in general incumbent on the defendant to show the real consideration if it was an inadequate one. Biddle v. Mandeville, 5 Cranch s Rep. 322. The drawer of a Bill of Exchange may ebut the presumption of his liability, in case of non-payment by the drawee, by proving that between the payee and himself, there was no consideration, 1 Serg. & Rawle, 32.

Having endeavoured to state two of the most peculiar proper- The history, &c.of foreign ties of a Bill of Exchange, namely, its assignable quality, and its bills. midity in the hands of a bona fide holder, though made without cnsideration, it may be proper to inquire concisely into the history, general nature, and use of these instruments.

Bills of Exchange are Foreign or Inland. Foreign, when drawn by a person abroad upon another in England, or vice versa; and Inland, when both the drawer and the drawee reside within this kingdom.

It seems extremely doubtful at what period, or by whom, Fog Bills of Exchange were first invented. The elementary waters on the subject differ. It is said by Pothier (a), that there is no vestige among the Romans of Bills of Exchange, or of any contract of exchange; for though it appears that Cicero directed one of his friends at Rome, who had money to receive at Athens, to cause it to be paid to his son at that place, and that friend accordingly wrote to one of his debtors at Athens, and ordered him to pay a sum of money to Cicero's son, yet it is observed that this mode amounted to nothing more than a mere order, or mandate, and was not that species of pecuniary negotiation which is carried on through the medium of a Bill of Exchange; nor does it appear that the commerce of the Romans was carried on by means of this instrument; for we find by one of their laws (b), that a person lending money to a merchant who navigated the seas, was under the necessity of sending one of his slaves to receive of [* 15 ]} his debtors the sum lent, when the debtor arrived at his destined port, which would certainly have been unnecessary, if commerce, through the medium of Bills of Exchange, had been in use with them. Most of our modern writers have asserted (probably on the authority of Montesquieu) (c), that these instruments were invented and brought into general use by the Jews and Lombards when banished for their usury, in order, with the secrecy necessary to prevent confiscation, to draw their effects out of France and England, to those countries in which they had chosen, or been compelled to reside; but Mr. Justice Blackstone says (d), this opinion is erroneous, because the Jews were banished out of Guienne in the year 1287, and out of England in the year 1290 (e); and in the year 1236 the use of paper credit

(a) Traites de Troit. Civil, tit. Traite du Contrat de Change, pl. 6. (b) De nautico fanere.

(c) Esp. L. 21. c. 16. n. 1.

(d) 2 Bla. Com. 467.

(e) 2 Carte, Hist. Engl. 203. 206.