assignment of maintenance'. However, in a late case, Lord Kenyon Doctrine as to the expressed his determination not to sanction the assign- choses in action. ment of a chose in action, so as to allow the assignee The consequence of this to sue in his own name. 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 transferrable, was established in the seventeenth century. In short, our courts, anxiously attending to the interests of the 'Per Buller, J. in Master v. Miller, 4 T. R. 340. et vide Winch 7. Keeley, 1 T. R. 621.—Israel v. Douglass, 1 Hen, Bla. 239. and Banfill v. Leigh, 8 T. R. 571. Johnson v. Collings, 1 East. 104.-Whitwell v. Bennett, 3 Bos. & Pul, 559. 3 Williamson v. Thomson, 16 Ves. jun. 443. assignment of choses in action. Doctrine as to 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'. Of the distinction between different contracts as to consideration, and in the case of a bill Having thus endeavoured to point out the peculiar properties of a Bill of Exchange, in respect of its being whichis presumed assignable so as to give the holder a right of action in of exchange, &c. his own name, it will be proper to make a few observations on the second privilege by which it is distinguished from other simple contracts, that of its importing a consideration unless the contrary be shewn3. When a consider ation not essential of exchange, &c. Contracts are of three descriptions. 1st. Matter of to validity of a bill record. 2dly. Specialty. 3dly. Parol or simple contracts. The first of these, viz. the judgment of, or a recognizance acknowledged before a court of record, on account of its being sanctioned by such tribunal, cannot be impeached, or the propriety of it questioned, in any action on the judgment, but ny 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', 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 it was made; and though 'Per Buller, J. in Master v. Miller, 4 T. R. 342. 2 Per Ld. Ellenborough, C. J. in Philliskirk v. Pluckwell, 2 M. & S. 395. 3 See the argument in Sharington v. Strotton, Plowd. 30s. 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 scal is affixed; and lastly, the contracting party delivers it, which is the consummation of his resolution. 4 Fellowes v. Taylor, 7 T. R. 477.-Bunn v. Guy, 4 East. 200. ation not essential to validity of a bill of exchange, &c. the defendant may be at liberty to avail himself of when a considerthe illegality in the consideration, it is incumbent on him to state it in pleading, and to establish it by evidence'. 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', and therefore, in general, they will not be enforced, unless the plaintiff can prove that they were made for a sufficient consideration. It is otherwise, however, in the case of a Bill of Exchange, it being scarcely ever necessary for the plaintiff to prove that he gave a consideration for it; and the defendant is not at liberty to prove that he received no consideration, unless in an action brought against him by the person with whom he was immediately concerned in the negotiation of the instruments, 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", 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'. 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 2 'Petrie v. Hanney, 3 T. R. 424. * Fonbl. 329. 333.-Sharington v. Strotton, Plowd. 308. 3 See the case of Rann 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 specialties, 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 v. Hanney, 3 T. R. 421. · Simmonds v. Parminter, 1 Wils. 189. 5 Guichard v. Roberts, 1 Bla. Rep. 445.-Lewis and Cosgrave, 2 Taunt. 2. Yeomans v. Bradshaw, 3 Salk. 70. ante, 2. 7 Philliskirk v. Pluckwell, 2 M. & S. 95. When a consider the medium of this species of security: for, notwith ation not essential of exchange, &c. to validity of a bill standing 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. The history, &c. of foreign bills. Having endeavoured to state two of the most peculiar properties of a Bill of Exchange, namely, its assignable quality, and its validity in the hands of a bonâ fide holder, though made without consideration, 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, Foreign Bills of Exchange were first invented. The elementary writers on the subject differ. It is said by Pothier, 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, that a person lending money to a merchant who navigated the seas, was under the necessity of sending one of Traités de Droit. Civil, tit. Traité du Contrat de Change, pl. 6. his slaves to receive of his debtor the sum lent, when The history, &c. of foreign bills. 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'), 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, this opinion is erroneous, because the Jews were banished out of Guienne in the year 1287, and out of England in the year 12903; and in the year 1236 the use of paper credit was introduced into the Mogul empire in China+. Other authors have attributed the invention to the Florentines, when, being driven out of their country by the faction of the Gebelings, they established themselves at Lyons and other towns. On the whole, however, there is no certainty on the subject, though it seems clear, Foreign Bills were in use in the fourteenth century, as appears from a Venetian law of that period; and an inference drawn from the statute 5 Rich, 2. st. 1, 26. warrants the conclusion, that Foreign Bills were introduced into this country previously to the year 1381. The mode of transmitting money from one country to another by means of these instruments, being once discovered, the advantages derived from it soon induced merchants universally to adopt it; and from thence it very early grew into a custom, which seems to have been judicially sanctioned in this country at a very Esp. L. 21. c. 16. n. 1. 2 Bla. Com. 467. 2 Carte. Hist. Engl. 203. 206. The only authority in support of this assertion is the 4 Mod. Un. Hist. 499. 5 Poth. pl. 7. Claxton v. Swift, 2 Show. 441, 494. |