The doctrine then of the non-alienability of choses-in-action, is therefore, a mere shadow of its former self. And it seems scarcely in the spirit of the age to maintain such an illusory restriction. Compelling an assignor to allow his assignee to sue in his name, is practically speaking compelling the obligor to attorn to him. Hence the free alienability of debts is now the reality, and the old Common Law doctrine is now the fiction.

How far a statute, similar to the statute of Anne abolishing attornments, may be necessary to sweep away this last remaining fiction, or how far the Courts of Common Law may feel themselves authorized to abandon it, this is not the place to inquire. It is a matter of common notoriety that the Courts of Common Law have largely adopted Equitable doctrines, and the arguments of two very eminent judges would certainly seem to sanction the opinion that the Courts of Common Law might abandon this antiquated fiction of their own authority. ASSHURST, J., said '-"It is true that formerly the Courts of Law did not take notice of an Equity, or a Trust; for Trusts are within the original jurisdiction of a Court of Equity. But of late years it has been found productive of great expense to send the parties to the other side of the Hall: wherever the Court has seen the justice of the case has been clearly with the Plaintiff, they have not turned him round on this objection. Then if this Court will take notice of a Trust, why not of an Equity?"

In another well known commercial case BULLer, J., said '— "It is laid down in our old books that for avoiding maintenance a chose-in-action cannot be assigned, or granted over to another. The good sense of that rule seems to me very questionable; and in early as well as modern times, it has been so explained away, that it remains at most only an objection to the form of action in any case. I see no use in preserving that shadow

when the substance is gone." And the same eminent Judge said in another case "_" During the fifteen years that I have sat on this bench, I have never known any case which established a distinction between Courts of Equity and Law on subjects of this kind. I have always thought it highly injurious to the public that different rules should prevail Winch v. Keely, 1 T.R., 619. 2 Master v. Miller, 4 T.R., 320. 3 Tooke v. Hollingworth, 5 T. R. 215.

in the different Courts on the same mercantile case. My opinion has been uniform on that subject. It sometimes, indeed, happens that in questions of real property, Courts of Law find themselves fettered with rules from which they cannot depart, because they are fixed and established rules; though Equity may interpose not to contradict, but to correct the strict and rigid rules of Law. But in mercantile questions no distinction ought to prevail. THE MERCANTILE LAW OF THIS COUNTRY IS FOUNDED ON PRINCIPLES OF EQUITY, AND WHEN ONCE A RULE IS ESTABLISHED IN THAT COURT AS A RULE OF PROPERTY, IT OUGHT TO BE ADOPTED IN A COURT OF LAW.

47. The true Common Law doctrine as to the transferability of debts may be stated thus

1. If the obligor grants the obligation to the obligee alone, an assignee of the obligation cannot sue the obligor in his own name. 2. But he may sue him in the name of the obligee.

3. If the obligor grants the obligations to the obligee and his "assigns or to his "order" or to "bearer," thereby giving his express consent to its alienation, the obligor may freely assign it, and the holder of it has a Right of action against the obligor, for he is bound by his own contract, and modus et conventio vincunt legem.

The importance of establishing this doctrine is well known to every one who has studied the common opinion on this subject.

Upon INSTRUMENTS of CREDIT.

48. Credit, then, being an Exchangeable Right, or an Economic Quantity, that is Wealth or Merchandize, which may be bought and sold, cannot of course in that form, be the subject of manual delivery. But the Greeks invented the plan of recording this Right on a material, and when this was done, the Right itself was capable of manual delivery like any other chattel. This written promise was called xepóypapor, a note-of-hand.

The Romans did not use written obligations till some time between Gaius and Justinian, and then they adopted the Greek name; and a creditor who held a written obligation of his debtor was called Cheirographarius Creditor.

In modern times there are several forms of such obligations in common use, and it is of advantage to have a generic name for them all. In some old cases in our Reports they are called Instruments of Debt, and in recent times they are very usually called INSTRUMENTS of CREDIT.

In Roman Law, Instrumentum was a general name for all evidence written, or personal, by which a claim could be proved.' In English Law the word "Instrument" is restricted to a written document containing the evidence or record of some fact. An "Instrument of Credit," therefore means the written evidence of a debt.

Instruments of Credit are of four forms:-1. Orders to pay money. 2. Promises to pay. 3. Credits in banks, termed Deposits. 4. A mere acknowledgment of a debt, usually termed an IO U.

49. The Roman lawyers brought the Theory of Credit to a state of perfection. But the practical development of it was comparatively feeble, because though debts were assignable, and the law contained all the principles which govern the negotiation of Bills of Exchange, written obligations were not used by them till a very late period.

It is needless to inquire how far commercial paper was used in the Byzantine Empire. It is sufficient to say that for all practical purposes, the modern system of Bills of Exchange took its rise about the end of the 12th century.

The power and the arrogance of the Popes had long been increasing, till in the time of the Crusades they claimed the right to tax all Christendom for their support. They had their own money dealers termed Cambiatores. These were persons who kept tables in the Cathedrals to exchange the money of foreigners who came to worship. These persons sent their own agents into different countries to collect the Papal tribute. As soon as they had collected a sufficient amount, they sent the Pope drafts upon their principals for the amount. These drafts were termed Litteræ Cambitoria,-money changers' drafts. These drafts were naturally in the form of an order upon their principals to pay a certain sum of the money of the country they were in, at a certain rate of exchange in Italian money. The use 1 Digest, xxii, 4: 1.

of them spread rapidly to commerce, and there are said to be laws of the Venetian Senate speaking of litteræ cumbii in the 13th century. In the middle of the 12th century, the Florentines took up the business of money dealing to a great extent, and their example was soon imitated by other Italian cities, such as Lucca, Asti, Sienna, Milan, Placentia. Cahors in France, also, became celebrated as a monetary centre; and the name of Caorsini became synonymous with usurers, and Dante' places them in the infernal regions, in very strange companionship, for this imaginary crime. The earliest Bill of Exchange known to exist was drawn in 1380. Another is quoted by Capmany, an eminent Spanish writer, dated 1404, which was drawn by a Lucchese merchant of Bruges on his correspondent at Barcelona, and negotiated in Bruges, but dishonoured in Barcelona. In the archives of Venice there are many Bills of Exchange of the 15th century, drawn by Venetian merchants on their correspondents in London, and sent back protested for non-payment. In none of these bills are there any words of negotiability; just as there need not be in a Scotch bill at the present day. Many writers have been puzzled to know how Bills of Exchange came to be negotiable. Some attribute the invention to Cardinal Richelieu. But the preceding investigation has completely cleared away all mystery on the subject. They were negotiable by the Constitution of Alexander Severus, of 224 A.D., adopted in the code of Justinian, which was the Law of all Europe.

But obligations, by the Common Law of England were not payable to any one but the Payee, without the consent of the Obligor. Accordingly we find that at a very early period it was usual to make Obligations payable to the obligee and his Attorney, which was equivalent to the modern " or order." Matthew Paris' quotes the form of an Obligation of the Friar and Convent of N., dated 1235, and made payable to certain Milanese merchants in London" aut uni eorum, vel eorum certo nuncio."

50. It is commonly supposed that Bills of Exchange were only in use among foreign merchants, and that Obligations in the form of Promises to pay were wholly unknown to commercial usage, and the Common Law, and that such an Obligation was not assignable at Common Law, even though containing words of negotiability.

1 Inferno, Cant. xi., l. 50.

2 Hist. Ang., p. 418.

There exists a work con

This however is a complete error. taining many of the customs of London in the reign of Edward IV. and Henry VII., usually called Arnold's Chronicle. In this, several forms of Obligation are given, as those in common use in the reign of Edward IV., and among these, are forms of Bills of Exchange drawn as Promissory Notes, payable to bearer; and also common Promissory Notes, payable to the Payee and his Attorney, or his Assigns.

As these documents are very little known, we may cite two of them. The following is given as the form of a Bill of Exchange (p. 118, Edit. 1811):

LETTRE OF EXCHAUNGE.

Be it knowen to alle men yt I R. A. citezen and habd' of London have ressd by exchaunge of N. A. mercer of the same cite xx. li. stg. whiche twenty ponde stg. to be payd to the said N. or to the BRINGER OF THIS BYLL, in synxten marte next comyng for vi. s. viij. d. stg. ix. s. iiij. q. fllg. money currant in the said mart, and yf any defaut of payment be at the day in alle or any part yerof that I promyse to make good all costis and scathes that may grow therby for defaute off payment as well as the principal some bee this my furst and seconde lettur of payement, and herto I bynde me myn executors and alle my goodis whersoever they may be founde. In wytnesse wherof I have written and sealyd this byll the x. day of Marche Ao. Dni. M.CCCC. lxxxij.

Besides this Bill of Exchange there are given several forms of the documents, which in modern language are called Promissory Notes. Most of these are made payable to the payee and his attorney, but one form given is this (p. 106):—

BYLL OF PAYMENT.

Memorand' this byll made the iiij. day of Julij in ye xix. yere of the reigne of Kyng Edward the iiij. beryth wytnesse yt we Ric. Shirlee of London grocer and Thomas Shirlee of London habard' owen unto W. Warboys and John Benson of London habard' xxxviij. s. ij. d. stg. to be payd to the said W. & J. or to ether of them, to their eyers, ther executors or to their ASSIGNES, ye furst day of Julij next comyng wythout ony delay, to the whiche payment wel and truly to be made we binde us our eyers, executors and our assignes, and eche of us in the hoole. In wytnesse wherof we set to oure seales the day and time afore rehersed.

These common forms establish the fact that in the time of Edward IV., it was usual to draw Bills of Exchange in the form of Promissory Notes, and to make them payable to bearer; and also that Promissory Notes payable "to order" or "to assigns" were in common use. There is no reason to suppose that they originated at that period; on the contrary, as