that it is not competent for any one to create floating rights of action against himself, said

"Having given the fullest consideration to this argument, we are of opinion that it cannot prevail. It is founded on the view that the Law Merchant thus referred to, is fixed and stereotyped, and incapable of being expanded and enlarged so as to meet the wants and requirements of trade in the varying circumstances of commerce. It is true that the Law Merchant is sometimes spoken of as a fixed body of law, forming part of the Common Law, and, as it were, coeval with it. But as a matter of legal history, this view is altogether incorrect"

The Lord Chief Justice then proceeded to speak of Bills of Exchange and Promissory Notes, and said that the common notion that Promissory Notes were not used in England till the end of the seventeenth century was a mistake. "Mr. Macleod shews that Promissory Notes payable to bearer, or to a man and his assigns, were known in the time of Edward IV"

After referring to several of the cases before cited, he said— "Thus far the practice of merchants, traders, and others, of treating Promissory Notes, whether payable to order or to bearer, on the same footing as Bills of Exchange, had received the sanction of the Courts, but Holt having become Chief Justice, a somewhat unseemly conflict arose between him and the merchants as to the Negotiability of Promissory Notes, whether payable to order or to bearer the Chief Justice, taking what must now be admitted to have been a narrow-minded view of the matter, setting his face strongly against the negotiability of these instruments, contrary, as we are told by authority, to the opinion of Westminster Hall: and in a series of successive cases persisting in holding them not to be negotiable by indorsement or delivery. The inconvenience of trade arising therefrom led to the passing of the Statute of 3 & 4 Anne, c. 9, whereby Promissory Notes were made capable of being assigned by indorsement, or made payable to bearer, and such assignment was thus rendered valid beyond dispute or difficulty

"It is obvious from the preamble of the Statute, which recites that it had been held that such Notes were not within the custom of merchants' that these decisions were not acceptable to the profession or the country. Nor can there be much doubt that by

the usage prevalent among merchants, these Notes had been treated as securities negotiable by the customary method of assignment, as much as Bills of Exchange properly so called. The Statute of Anne may, indeed, practically speaking, be looked upon as a Declaratory Statute, confirming the decisions prior to the time of Lord Holt "

The Lord Chief Justice then, having reviewed several other cases, came to the case of Crouch v. The Credit Foncier of England, in his own Court, but decided in his absence. He expressed disapproval of the reasons given for the judgment, that it was not competent for the Company to make instruments negotiable which were not negotiable at Common Law: though, he said, the judgment might be supported on the ground that the usage was not proved to be general. "We cannot concur in thinking that if proof of general usage had been established, it would have been a sufficient ground for refusing to give effect to it that it did not form part of what is called the ancient Law Merchant

"If we could see our way to the conclusion that in holding the scrip in question to pass by delivery, and to be available to bearer, we were giving effect to a usage incompatible either with the Common Law or with the Law Merchant as incorporated into and embodied in it, our decision would be a very different one from that which we are about to pronounce. But so far from this being the case, we are, on the contrary, in our opinion only acting on an established principle of that law in giving legal effect to a usage, now become universal, to treat this form of security, being on the face of it expressly made transferable to bearer, as the representative of money, and, as such, being made to bearer, as assignable by delivery"

The Court then affirmed the Judgment of the Court of Exchequer. Thus all the Courts of Common Law held that the Scrip was a Negotiable Instrument

The Lord Chief Justice had the Paper we prepared for the Law Digest competition before him, and, in the course of the Judgment, he did the author the very high honour to refer to it as follows

"We find it stated in a Law Tract by Mr. Macleod, entitled 'Specimen of a Digest of the Law of Bills of Exchange,' printed, we believe, as a Report to the Government, but which, from its

research and ability, deserves to be produced in a form calculated to ensure a wider circulation," &c. From these terms it is evident that he assented to the course of the argument taken in it

Choses-in-action made Transferable by Statute, without the Consent of the Debtor

69. The Courts of Law never adopted the suggestion of Ashhurst and Buller, that they should drop the formality of requiring the Transferee of a Debt to sue in the name of the Transferor. But this has at length been done by the Act, Statute 1873, c. 66: in sect. 25, § 6 of that Act it enacted—

"Any absolute assignment by writing, under the hand of the assignor (not purporting to be by way of charge only) of any Debt or other legal chose-in-action, of which express notice in writing shall have been given to the Debtor, Trustee, or other person from whom the Assignor would have been entitled to receive or claim such debt, or chose-in-action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee, if this Act had not passed), to pass and transfer the legal right to such Debt, or chose-in-action, from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concourse of the assignor : provided always, that if the Debtor, Trustee or other person liable in respect of such Debt, or chose-in-action, shall have had notice that such assignment is disputed by the assignor, or any one claiming under him, or of any other opposing or conflicting claims to such Debt, or chose-in-action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice, under, and in conformity with, the provisions of the Acts for the relief of Trustees"

It will be seen that this clause confers the Right upon Creditors to transfer their Debts, or choses-in-action, without the consent of the Debtor; and, consequently, if the holder of an obligation not made transferable by the express will of the obligor, gives notice to the Debtor in terms of this clause, he can maintain an action on it. But it still leaves untouched the case of an Obligation.

created transferable with the express consent of the Obligor, which is transferred without a written notice to the Debtor, and in such cases, which form the great majority of such transactions, the Rules of the Common Law still apply. But if there should be any doubt on the point, which we contend there never was, it is provided for in § 11 of the same section, which says—

"Generally in all matters not herein before particularly mentioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail"

Thus the Mercantile Law of England is now assimilated with that of all Europe

Section IV

Upon Instruments of Credit

70. Credits or Debts, then, being Commodities, or Merchandise, may be sold or transferred as freely as any material chattels: but so long as they remain in the mere invisible and intangible form of a Right of action, they cannot be the subject of manual delivery

But we have seen that the Greeks hit upon the plan of recording this Right upon some material: and when this was done the Right itself became capable of manual delivery like any material chattel

When the Credit or Debt is recorded on paper or other material, it is termed an Instrument of Credit, or of Debt: and it must be observed that when used in this sense the word Instrument has a technical meaning which is often overlooked

The word Instrument has two distinct meanings

1. Sometimes it means a tool, or implement, or means by which some purpose is effected. Thus Edgar says in Lear—

"The Gods are just, and of our pleasant vices

Make Instruments to plague us

So Smith speaks of Money as the "Great Instrument of Exchange" or "Instrument of Commerce"

2. But when Bills and Notes are termed Instruments of Credit or of Debt, the word has quite a different meaning from what it has in the phrase Instrument of Exchange

The term Instrument of Exchange denotes the means by which exchanges are affected: the term Instrument of Credit means the Record or Document, or written evidence of the Debt In Roman Law, Instrumentum means any evidence, whether oral or written, by which a Court or Judge was in