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and Utility.

General Nature unexpected event, a particular branch of commerce may be affected and the trader unable to bring his commodities to a fair market, in time to meet the payments for which he has to provide. In these cases, by the temporary assistance of friends, through the medium of Bills of Exchange, his credit may be saved, and he may be enabled to hold his goods till some fair opportunity of sale presents itself. The use of fictitious names to bills has not been unfrequent, but this practice is not only censurable but in some cases punishable criminally'.

Peculiar Properties of Bills, &c.

The various advantages which commerce derives from the use of Bills of Exchange, have induced our courts of justice to allow them certain peculiar privileges in order to give full effect to their utility. These are, first, that although a Bill of Exchange is a chose in action, yet it may be assigned so as to vest the legal as well as equitable interest therein, in the indorsee or assignee, and to entitle him to sue thereon in his own name. And, secondly, that although a Bill of Exchange, &c. is not a specialty, but merely a simple contract, yet a sufficient consideration is implied from the nature of the instrument and its existence in fact is rarely necessary to be proved.

The first of these privileges is of most essential importance in various points of view, and principally that a release by the drawer to the acceptor, or a set-off or cross demand due from the former to the latter, cannot affect the right of action of the payee or indorsee; because the legal and not the mere equitable interest is vested in such payee or indorsee, and the action is sustainable in his own name; whereas suits upon bonds, and most other choses in action, must be in the name of the original obligee; and though it be apparent that he sues merely as a trustee for another to whom he has assigned his interest, yet a release from him, or a set-off due from him to the

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ties of Bills, &c.

obligor, may be an effectual bar to the action. The Peculiar Proper second of these privileges is also of great importance. In general, an action cannot be supported upon a contract not under seal, without alleging in pleading, and proving on the trial, that the contract was made for a sufficient consideration; but in the case of Bills of Exchange, promissory notes, &c. a sufficient consideration is presumed, and the validity of the bill, &c. cannot in general be disputed on account of the want of sufficient consideration, when it is in the hands of a third person who has given value for it.

As it may tend to elucidate the properties of Bills of Exchange, and other negotiable instruments of that nature, we will shortly examine the doctrine relating to the assignment of choses in action; and the necessity in general for a sufficient consideration to give

effect to a contract.

assignment of

The first peculiar privilege of a Bill of Exchange is Doctrine as to the its assignable quality, and which is in direct opposition choses in action 2. to a very ancient rule of law, the founders of which refused to sanction or give effect to the transfer of any possibility, right, or any other chose in action, (which is defined to be a right not reduced into possession3,) to a stranger; on the ground that such alienations tended to increase maintenance and litigation, and afforded means to powerful men to purchase rights of action, and thereby enable them to oppress indigent debtors, whose original creditors would not perhaps have sued them. Our ancestors were so anxious to

1 Bauerman v. Radenius, 7 T. R. 663.

2

As to the assignment of choses in action in general, sec Master r. Miller, 4 T. R. 340.-In Williamson v. Thompson, 16 Ves. jun. 443. it was held, that the indorsement of an India Certificate did not pass the legal interest.-In Glynn v. Baker, 13 East. 509. it was held, that an India Bond was not assignable, but this has been since altered by 51 Geo. 3. c. 64. which makes them assignable, and enables the assignee to sue in his own name.

3 Termes de la ley, tit. Chose in Action.-2 Bla. Com. 442. In other words, "the interest in a contract, which, in case of non-performance, can only be reduced into beneficial possession by an action or suit." * Co. Lit. 214. 265. a. n. 1. 232. b. n. 1. - 2 Rol. Ab. 45. 46.Godb. 81.-Termes de la ley, tit. Chose in Action.-Scholey v. Daniel, 2 Bos. & Pul. 541.

assignment of

choses in action.

Doctrine as to the prevent alienation of choses, or rights in action, that we find it enacted by the 32 H. 8. c. 9. which, it is said, was in affirmance of the common law', that no person should buy or sell, or by any means obtain any right or title to any manors, lands, tenements, or hereditaments, unless the person contracting to sell, or his ancestor, or they by whom he or they claim the same, had been in possession of the same, or of the reversion or remainder thereof, for the space of one year before the contract: and this statute was adjudged to extend to the assignment of a copyhold estate2, and of a chattel interest, as a lease for years, of land, whereof the grantor was not in possession. At what time this doctrine, which it is said had relation originally only to landed estates, was first adjudged to be equally applicable to the assignment of a mere personal chattel not in possession, it is not easy to decide : it seems, however, to have been so settled at a very carly period of our history, as the works of our oldest text writers, and the reports, contain numberless observations and cases on the subject. Lord Coke says that it is one of the maxims of the common law, that no right of action can be transferred, "because, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth." Accordingly we find, that judgment was arrested in an action on a bond conditioned for the performance of articles of agreement, which contained a covenant that the defendant should assign certain bonds to the plaintiff for his own use, on the ground that such condition and covenant amounted to maintenance. And although it was decided that the king,

'Partridge v. Strange, Plowd. 88.

2 Kite and Queinton's case, 4 Co. 26. a.

3 Partridge v. Strange, Plowd. 88. As to a possibility in land, see Jones v Roe, 3 T. R. 88.-1 Hen. Bla. 30. S. C.-Cullen, 178. 42 Woodd 388.

Co. Lit. 214. a.-See also Scholey v. Daniel, 2 Bos. & Pul. 541. • Hodson v. Ingram, Aleyn. 60. et vide 2 Rol. Ab. 43. 1. 40.

in respect of his prerogative, might transfer a right Doctrine as to the of action', yet it was afterwards ruled that his assignee choses in action.

had no such power1.

This doctrine, however strictly adhered to in our courts of law, was not adopted by our courts of equity': for though it is said to have been decided in the 11th James 1. that the assignee of a covenant could not sue in a court of equity to enforce performance, because it was against law to assign a covenant, yet that seems to be an insulated case; and no other authority is to be found, where a court of equity has refused to give effect to the assignment of a chose in action, provided such assignment were made for a sufficient consideration. A court of equity having it in its power to decree according to the justice of every case, there could have been no danger of maintenance being increased by its giving effect to such assignments; we therefore find a great number of cases where decrees have been made in favour of such assignees .

In courts of law, the equitable interest of the assignee of a chose in action seems to have been recog nized as far back as, the middle of the last century, when we find it said by one of the judges", "that if an assignee of a chose in action, have an equity, that equity should be no exile to the courts of common law." In another case also, the court speak of an assignment of an apprentice, or an assignment of a bond, as things valid between the parties, and to which they

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'Co. Lit. 232. b. n. 1.-Breverton's case, 1 Dyer, 30. b. pl. 208,-The King v. Wendham, Cro. Jac. 82.

The King v. Twine, Cro. Jac. 180.-Kingdom v. Jones, Skin. 6, 20. 3 Per Buller, J. in Master v. Miller, 4 T. R. 340.

* 1 Rol. Abr. 376. l. b.

Vin. Abr. tit. Maintenance, B.-2 Rol. Abr. 45, 46.-Co. Lit. 232. Baldwin 7. Rochford, 1 Wils. 229.-Wright v. Wright, 1 Ves. 411, 412.—Peters v. Soame, 2 Vern. 428.—Baldwin v. Billingsley, id. 540.-Crouch v. Martin, id. 595.-Cole v. Jones, id. 692.-Careret (Lord) v. Paschel, 3 P. W. 199.; and it has lately been decided, that an equitable assignment of a debt, may be by parol as well as by deed, Heath v. Hall, 4 Taunt. 326.

In Kingdom v. Jones, 33 Car. 2. Skin. 6, 7.—Sir T. Jones, 150. S. C.

The King against the Parish of Aickless, 12 Mod..554.

assignment of

Doctrine as to the must give their sanction; and an assignment of a chose

assignment of

choses in action.

in action has always been deemed a sufficient consideration for a promise', although the debt assigned was uncertain. So indeed it was decided, that where the obligee has assigned over a bond, and afterwards become a bankrupt, he might nevertheless bring an action on the bond'; and that in an action upon a bond given to the plaintiff in trust for another, the defendant may set off a debt due from the person beneficially interested, in like manner, as if the action had been brought by the cestui que trust. But though courts of law have gone the length of taking notice of assignments of choses in action, and of giving effect to them, yet in almost every case they have adhered to the formal objection that the action should be brought in the name of the assignor, and not in 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 persons. 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

1

1 Rol. Abr. 29.-Loder v. Chesleyn, Sid. 212.-Lewis v. Wallis, Sir T. Jones, 222.-Meredith v. Short, 1 Salk. 25.-Banfill v. Leigh, ST. R. 571.-Israel v. Douglass, 1 Hen. Bla. 239.

2 Moulsdale v. Birchall, 2 Bla. Rep. 820.

3 Winch. Keeley, 1 T. R. 619.-Carpenter v. Marnel, 3 Bos. & Pul. 40.

4

* Bottomley v. Brook, and Rudge v. Birch, cited in 1 T. R. 621. and in 4 T. R. 341. sed vide Bauerman v. Radenius, 7 T. R. 663. But the court refused to allow a defendant to set off a bond debt of the plaintiff assigned to him by a third person to whom and for whose use it was originally given, Wake v. Tinkler, 16 East. 36.

5 Bauerman v. 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.

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